Demopoulos and Fullard (No. 2) - [2015] FamCA 1195

FAMILY COURT OF AUSTRALIA

DEMOPOULOS & FULLARD (NO. 2)

[2015] FamCA 1195

FAMILY LAW – PROPERTY– ENFORCEMENT – Writ of possession – Where the applicant husband seeks that a writ of possession be issued for possession of the former matrimonial home – Where the respondent wife seeks that the orders requiring her to vacate the former matrimonial home be set aside – Application of the wife dismissed – Writ of possession issued – Writ of possession to lie in the Registry for twenty-eight days, pending further order.

Family Law Act 1975 (Cth) s 80(1)(k)
Property (Relationships) Act 1984 (NSW) s 38(1)(k)

Kollmorgan & Kollmorgan (1984) FLC 91-551
Liu & Guo (No.2) [2007] NSWSC 288

APPLICANT:

Mr Demopoulos

RESPONDENT:

Dr Fullard

FILE NUMBER:

SYC

2390

2015

DATE DELIVERED:

21 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

21 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harper

SOLICITOR FOR THE APPLICANT:

McDonell Milne Toltz Family Lawyers

FOR THE RESPONDENT:

Dr Fullard in person

Orders

The respondent wife’s oral application made to the Court today to deal with matters concerning parenting is dismissed.
The respondent wife’s application to set aside the Orders made by Justice Le Poer Trench on 18 November 2015 is dismissed.
That a Writ of Possession (“the Writ”) issue forthwith in the following form:
“To the Marshall of the Court, to all Officers of the Federal Police and to all Officers of the Police Force of the State of New South Wales:
1.Whereby in an Order of this Court made at Sydney on 18 November 2015 (“the Order”) it was ordered that [Dr Fullard] should, within 21 days of the date of service of the Order upon her, do all acts and things necessary to vacate the premises situated at [G Street, Suburb E] in the State of New South Wales, and whereas the Court is satisfied that service of the Order was effected on [Dr Fullard] on Monday 23 November 2015 and that the said [Dr Fullard] has failed to comply with the Order, you are hereby directed for the purpose of giving effect to the Order, at such time with such assistance as you may require, and if necessary by force, to enter the property and cause the husband, [Mr Demopoulos], to have vacant possession for the purpose of effecting the sale of it, and to cause the wife, [Dr Fullard], to vacate the said property.”
The Writ is to lie in the Registry at Sydney for a period of twenty-eight (28) days from the date of this Order and is not issue from the Registry without further Orders of a Judge of the Court.
An Application for the Writ to issue may be made on an ex parte basis to a Judge in Court or in chambers.
The Writ is to cease to have effect twelve (12) months after the date of issue.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demopoulos &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Demopoulos and Fullard (No. 2)

Details

AGLC: Demopoulos and Fullard (No. 2) [2015] FamCA 1195
Case: [2015] FamCA 1195
Decision Date: 21 December 2015

CaseChat Overview and Summary

In *Demopoulos and Fullard (No. 2)*, McClelland J of the Federal Circuit Court of Australia considered applications by a respondent wife concerning parenting matters and an application to set aside previous court orders. The primary dispute revolved around the wife's failure to comply with an order requiring her to vacate a property to facilitate its sale.

The court was required to determine whether to grant the wife's applications regarding parenting and to set aside the existing orders. Crucially, the court also had to consider the husband's application for a Writ of Possession to enforce the prior order for the wife to vacate the property.

McClelland J dismissed the wife's applications. The judge reasoned that the wife had failed to comply with the order of 18 November 2015, which directed her to vacate the premises within 21 days of service. As service had been effected and compliance had not occurred, the court found it necessary to issue a Writ of Possession. This writ directed the Marshall, Federal Police, and NSW Police to enter the property, if necessary by force, to give the husband vacant possession for the purpose of sale and to cause the wife to vacate. However, the writ was ordered to lie in the Registry for 28 days and not to be issued without further order, with any application for its issue to be made ex parte. The writ was also to cease to have effect 12 months after its issue.

Orders

Orders of the court

The respondent wife’s oral application made to the Court today to deal with matters concerning parenting is dismissed.

The respondent wife’s application to set aside the Orders made by Justice Le Poer Trench on 18 November 2015 is dismissed.

That a Writ of Possession (“the Writ”) issue forthwith in the following form:

“To the Marshall of the Court, to all Officers of the Federal Police and to all Officers of the Police Force of the State of New South Wales:

1. Whereby in an Order of this Court made at Sydney on 18 November 2015 (“the Order”) it was ordered that [Dr Fullard] should, within 21 days of the date of service of the Order upon her, do all acts and things necessary to vacate the premises situated at [G Street, Suburb E] in the State of New South Wales, and whereas the Court is satisfied that service of the Order was effected on [Dr Fullard] on Monday 23 November 2015 and that the said [Dr Fullard] has failed to comply with the Order, you are hereby directed for the purpose of giving effect to the Order, at such time with such assistance as you may require, and if necessary by force, to enter the property and cause the husband, [Mr Demopoulos], to have vacant possession for the purpose of effecting the sale of it, and to cause the wife, [Dr Fullard], to vacate the said property.”

The Writ is to lie in the Registry at Sydney for a period of twenty-eight (28) days from the date of this Order and is not issue from the Registry without further Orders of a Judge of the Court.

An Application for the Writ to issue may be made on an ex parte basis to a Judge in Court or in chambers.

The Writ is to cease to have effect twelve (12) months after the date of issue.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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