Hanlon & Hanlon and Anor - [2008] FamCA 411

FAMILY COURT OF AUSTRALIA

HANLON & HANLON AND ANOR

[2008] FamCA 411

FAMILY LAW – PROPERTY – Order that the wife vacate real property

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hanlon

RESPONDENT:

Mrs Hanlon

INTERVENOR:

Mr James (As Trustee in bankruptcy for the wife)

FILE NUMBER:

MLF

3687

2005

DATE DELIVERED:

28 May 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

YOUNG J

HEARING DATE:

28 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR SPICER

SOLICITOR FOR THE APPLICANT:

CE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR:

MS REA

SOLICITOR FOR THE INTERVENOR:

TAUSSIG CHERRIE & ASSOCIATES

ORDERS

IT IS ORDERED:

THAT on or before Monday 14 July 2008 the wife vacate the property at E in the State of Victoria and at the time of departure make available all keys to that property and any password, code or other requirement as may exist to the trustee or his nominee.
THAT all fixtures and fittings are to remain in that E property and not to be removed therefrom by the wife or any servant or agent of the wife.
THAT upon vacating the property the wife thereafter not re-enter the property unless with the signed written agreement of the trustee and the husband’s solicitors.
THAT on her departure the wife, to the best of her ability, leave the property and its surrounds in a clean and tidy condition.
THAT the application in a case filed 22 May 2008, and in particular as to paragraphs 2 and 4 thereof be otherwise adjourned to the Judicial Duty List on Wednesday 16 July 2008 at 10.00 a.m.
THAT if the further interim hearing is to proceed on that adjourned date then it is directed that the husband, the trustee in bankruptcy and the wife be all at court at that date and time.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband and solicitor appearing as counsel for the Trustee in Bankruptcy.

IT IS NOTED that publication of this judgment under the pseudonym Hanlon & Hanlon and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3687 of 2005

MR HANLON

Applicant

And

MRS HANLON

Respondent

And

MR JAMES (AS TRUSTEE IN BANKRUPTCY FOR THE WIFE)
Intervenor

REASONS FOR JUDGMENT

The matter of Hanlon & Hanlon and the Trustee in bankruptcy for the wife is before me in the Judicial Duty List. Ms Rea, solicitor, appears for the Trustee. They are represented by Queensland solicitors who, for the purposes of the hearing today, have appointed Melbourne town agents, Taussig Cherrie. Mr Spicer appears as counsel for the husband who has engaged CE Family Lawyers. The wife appeared at court this…

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 Hanlon & Hanlon and Anor

Details

AGLC: Hanlon & Hanlon and Anor [2008] FamCA 411
Case: [2008] FamCA 411
Decision Date: 28 May 2008

CaseChat Overview and Summary

This matter concerned an application before Young J in the Family Court of Australia. The dispute involved the wife's occupation of a property located in Victoria, which was subject to bankruptcy proceedings. The husband, through his solicitors, sought orders concerning the wife's departure from the property and the preservation of its contents.

The primary legal issues before the court were whether the wife should be ordered to vacate the property, the conditions under which she should do so, and the extent to which she should be restricted from re-entering the property. The court also considered the preservation of fixtures and fittings within the property and the wife's obligation to leave the property in a clean and tidy condition.

Young J ordered that the wife vacate the property by 14 July 2008, providing all keys and access details to the trustee. The court stipulated that all fixtures and fittings were to remain in the property and that the wife was not to re-enter without the written agreement of the trustee and the husband's solicitors. The wife was also directed to leave the property and its surrounds clean and tidy upon her departure. The application, specifically paragraphs 2 and 4, was adjourned to the Judicial Duty List on 16 July 2008, with directions for the attendance of the husband, the trustee, and the wife if the hearing proceeded. The court certified that the matter reasonably required the attendance of counsel for the husband and a solicitor appearing as counsel for the trustee.

Orders

Orders of the court

IT IS ORDERED:

THAT on or before Monday 14 July 2008 the wife vacate the property at E in the State of Victoria and at the time of departure make available all keys to that property and any password, code or other requirement as may exist to the trustee or his nominee.

THAT all fixtures and fittings are to remain in that E property and not to be removed therefrom by the wife or any servant or agent of the wife.

THAT upon vacating the property the wife thereafter not re-enter the property unless with the signed written agreement of the trustee and the husband’s solicitors.

THAT on her departure the wife, to the best of her ability, leave the property and its surrounds in a clean and tidy condition.

THAT the application in a case filed 22 May 2008, and in particular as to paragraphs 2 and 4 thereof be otherwise adjourned to the Judicial Duty List on Wednesday 16 July 2008 at 10.00 a.m.

THAT if the further interim hearing is to proceed on that adjourned date then it is directed that the husband, the trustee in bankruptcy and the wife be all at court at that date and time.

THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband and solicitor appearing as counsel for the Trustee in Bankruptcy.

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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