FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ernesta & Ernesta [2023] FedCFamC2F 1753
File number: MLC 5356 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 11 December 2023 Catchwords: FAMILY LAW – Application for enforcement – whether application to sell former home is really an application for enforcement or the making of consequential or machinery orders – application granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.16(3), Ch 11. Cases cited: Olsson & Olsson [2022] FedCFamC1A 129 Division: Division 2 Family Law Number of paragraphs: 37 Date of hearing: 11 December 2023 Place: Melbourne Counsel for the Applicant: Ms Drew Solicitor for the Applicant: Intouch Legal Centre Advocate for the Respondent: In Person ORDERS
MLC 5356 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ERNESTA
Applicant
AND: MR ERNESTA
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant Wife has permission to pursue her application on an undefended basis as contemplated under Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.The real property situated at and known as B Street, Suburb C, in the state of Victoria, more particularly described as Certificate of Title Volume … Folio … ('the Property'), be placed on the market for sale.
3.For the purpose of carrying into effect these Orders, the Applicant Wife is hereby appointed trustee for sale of the Property ('the Trustee').
4.The Respondent Husband must vacate the Property within 60 days of the date of these Orders.
5.Upon the expiry of 60 days from the date of these Orders, the Applicant Wife shall be entitled to exclusive occupation of the Property.
6.Upon the expiry of 60 days from the date of these Orders, the Trustee shall have the authority to conduct the sale of the Property and must promptly organise and conduct the sale of the Property as follows:
(a)either by public auction or by private treaty or a combination of both;
(b)with estate agents and/or auctioneers as elected by the Trustee;
(c)with a conveyancing service as elected by the Trustee;
(d)at a contract price and/or reserve price as determined by the Trustee;
(e)to sign all documents as are necessary to cause the sale of the Property, including but not limited to, agency agreements, auctioneer agreements, conveyancing costs agreements, contracts for sale and Transfers of property; and
(f)with the Trustee to keep the Respondent Husband informed of decisions made in accordance with Orders 6(a) – (e) above.
7.The proceeds of the sale of the Property be applied as follows:
(a)firstly, to pay any mortgages and all costs and expenses of the sale;
(b)secondly to pay;
(i)50% to the Respondent Husband;
(ii)Subject to Order 8 herein, an additional sum of $20,000 ('the Additional Sum'); and
(iii)the balance to the Applicant Wife.
8.From the proceeds of the sale of the Property, the Applicant Wife pay…
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CaseChat Overview and Summary
The court examined the nature of Ms Ernesta's application, noting that it was not simply an enforcement of a prior order but rather a request to facilitate the sale of the property as part of the division of assets. Judge Blake determined that the application fell within the court's jurisdiction to make consequential orders under section 111 of the Family Law Act 1975 (Cth). Consequently, the application was not an enforcement application but rather a request for machinery orders to facilitate the division of assets. Given this interpretation, the court granted the application, allowing Ms Ernesta to proceed with the sale of the property.
The court issued comprehensive orders to ensure the orderly sale of the property and the division of proceeds. The property was to be placed on the market for sale by public auction, private treaty, or a combination of both, with Ms Ernesta appointed as the trustee for the sale. Mr Ernesta was required to vacate the property within 60 days, after which Ms Ernesta would have exclusive occupation. The sale proceeds were to be applied first to pay off any mortgages and sale costs, followed by a 50% distribution to Mr Ernesta and an additional sum of $20,000 to him from Ms Ernesta's share. Any remaining balance would go to Ms Ernesta. If Mr Ernesta did not vacate the property, law enforcement and removal services were authorised to remove him and his possessions, with the costs to be deducted from his share of the sale proceeds.
Orders
Orders of the court
MLC 5356 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ERNESTA
Applicant
AND:
MR ERNESTA
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
11 DECEMBER 2023
THE COURT ORDERS THAT:
1. The Applicant Wife has permission to pursue her application on an undefended basis as contemplated under Rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2. The real property situated at and known as B Street, Suburb C, in the state of Victoria, more particularly described as Certificate of Title Volume … Folio … ('the Property'), be placed on the market for sale.
3. For the purpose of carrying into effect these Orders, the Applicant Wife is hereby appointed trustee for sale of the Property ('the Trustee').
4. The Respondent Husband must vacate the Property within 60 days of the date of these Orders.
5. Upon the expiry of 60 days from the date of these Orders, the Applicant Wife shall be entitled to exclusive occupation of the Property.
6. Upon the expiry of 60 days from the date of these Orders, the Trustee shall have the authority to conduct the sale of the Property and must promptly organise and conduct the sale of the Property as follows:
(a) either by public auction or by private treaty or a combination of both;
(b) with estate agents and/or auctioneers as elected by the Trustee;
(c) with a conveyancing service as elected by the Trustee;
(d) at a contract price and/or reserve price as determined by the Trustee;
(e) to sign all documents as are necessary to cause the sale of the Property, including but not limited to, agency agreements, auctioneer agreements, conveyancing costs agreements, contracts for sale and Transfers of property; and
(f) with the Trustee to keep the Respondent Husband informed of decisions made in accordance with Orders 6(a) – (e) above.
7. The proceeds of the sale of the Property be applied as follows:
(a) firstly, to pay any mortgages and all costs and expenses of the sale;
(b) secondly to pay;
(i) 50% to the Respondent Husband;
(ii) Subject to Order 8 herein, an additional sum of $20,000 ('the Additional Sum'); and
(iii) the balance to the Applicant Wife.
8. From the proceeds of the sale of the Property, the Applicant Wife pay to the Respondent Husband, an adjusting sum of $20,000 from her share of the proceeds. The Applicant Wife is entitled to cause the Additional Sum to be held in trust pending payment out of the costs of the removalist referred to in Order 9(b) herein, and any outstanding utilities or rates connected to the Property, and to then pay the balance of the Additional Sum to the Respondent Husband.
9. Should the Respondent fail to vacate the Property and provide the Trustee with exclusive occupation in accordance with Orders 4 and 5 of these Orders:
(a) The Marshall, all officers of the Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, be authorised and directed with such assistance as they may require, and if necessary, by force, to remove the Respondent from the Property to an address to be nominated by the Respondent or his Agent ('the Respondent's Address');
(b) The Trustee be authorised to engage the services of a removalist to remove and deliver the Respondent's possessions (if any remain in the property) to the Respondent's Address with the cost of this removal to be deducted from the Respondent's share of the proceeds of sale of the Property in Order 7(b)(ii) herein.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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