Ettridge and Somers (No 3) - [2019] FamCA 520

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS (NO. 3)

[2019] FamCA 520

FAMILY LAW – PROPERTY – stay – where the respondent has initiated appeal proceedings in relation to four sets of orders made by the Court over a period spanning almost two years – where the respondent seeks a stay of those orders pending appeal – no basis for a stay – order that the respondent’s application for a stay of the operation of orders be dismissed.

FAMILY LAW – PROPERTY – where the applicant alleges that the respondent failed to provide vacant possession of the former matrimonial home in accordance with orders – where the applicant seeks a warrant for possession issue requiring the respondent to give vacant possession of the property to the applicant pursuant to r 20.54 of the Family Law Rules 2004 (Cth) – order that a warrant for possession issue.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 20.54, 22.11

Federal Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; (1986) 160 CLR 220
Jackson & Balen (2009) FamCAFC 131
Jennings Construction Ltd v. Burgundy Royale Invesments Pty Ltd (1986) 161 CLR 681

APPLICANT:

Ms Ettridge

RESPONDENT:

Mr Somers

FILE NUMBER:

MLC

11262

2015

DATE DELIVERED:

2 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

17 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Paterson

SOLICITOR FOR THE APPLICANT:

Carew Counsel Pty Ltd

THE RESPONDENT:

In Person

Orders

The Marshal and all officers of the Australian Federal Police, for the purpose of giving effect to the Order of this Court made on 18 June 2019, requiring MR SOMERS to vacate the property situate at and known as B Street, Suburb C Victoria (“the property”) ARE DIRECTED with such assistance as they may require and if necessary by force to enter upon the property and cause MR SOMERS to vacate the property and give vacant possession of the land to MS ETTRIDGE.
That the Application in a Case filed 25 June 2019, Response to Application in a Case filed 15 July 2019, Application in a Case filed 12 June 2019 and Response to Application in a Case filed 14 June 2019 be otherwise dismissed.
That any application for costs arising out of these proceedings be by way of written submission filed as follows:-
(i)within 14 days of the date of these orders the applicant file and serve written submissions in support of the application for costs;
(ii)within 7 days of the filing of submissions pursuant to sub-paragraph (a) hereof the respondent file and serve any submissions in response to the application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of…

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.

Keep reading for free

Create a free CaseChat account to read Ettridge and Somers (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FamCA 520
Decision Date: 2 August 2019

CaseChat Overview and Summary

In *Ettridge and Somers (No 3)*, Johns J of the Family Court of Australia considered an application by the respondent for a stay of four sets of orders made by the Court over a period of almost two years, pending his appeal. The applicant also sought a warrant for possession of the former matrimonial home, alleging the respondent had failed to provide vacant possession as previously ordered.

The primary legal issues before the Court were whether there was a sufficient basis to grant a stay of the existing orders pending appeal, and whether a warrant for possession should issue to enforce the order for vacant possession of the property.

Johns J found no basis to grant the stay of the orders, dismissing the respondent's application. The Court reasoned that the respondent had not demonstrated any grounds that would warrant such an intervention. Consequently, the Court ordered that a warrant for possession issue, directing the Marshal and officers of the Australian Federal Police to enter the property, cause the respondent to vacate, and give vacant possession to the applicant. The Court also ordered the dismissal of certain applications and provided directions for written submissions regarding costs.

Orders

Orders of the court

The Marshal and all officers of the Australian Federal Police, for the purpose of giving effect to the Order of this Court made on 18 June 2019, requiring MR SOMERS to vacate the property situate at and known as B Street, Suburb C Victoria (“the property”) ARE DIRECTED with such assistance as they may require and if necessary by force to enter upon the property and cause MR SOMERS to vacate the property and give vacant possession of the land to MS ETTRIDGE.

That the Application in a Case filed 25 June 2019, Response to Application in a Case filed 15 July 2019, Application in a Case filed 12 June 2019 and Response to Application in a Case filed 14 June 2019 be otherwise dismissed.

That any application for costs arising out of these proceedings be by way of written submission filed as follows:-

(i) within 14 days of the date of these orders the applicant file and serve written submissions in support of the application for costs;

(ii) within 7 days of the filing of submissions pursuant to sub-paragraph (a) hereof the respondent file and serve any submissions in response to the application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.