Hannegan & Orlando - [2023] FedCFamC2F 516

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hannegan & Orlando [2023] FedCFamC2F 516

File number(s): ADC 2571 of 2021

Judgment of: JUDGE DICKSON

Date of judgment: 5 May 2023

Catchwords: FAMILY LAW – ENFORCEMENT – PROPERTY – de facto relationship – final orders – where the applicant seeks vacant possession and enforcement in preparation for sale – oral application by the respondent to adjourn – oral application dismissed – orders made as sought by the applicant

Legislation:
Family Law Act 1975 (Cth) ss 81, 90SN, 105, 106A, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 11.56, 11.62

Cases cited:
Ahsan & Ahsan [2020] FamCA 69

Bray & Bray (1988) FLC 91-968

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Cheung v The Queen (1999) 73 ALJR 1093

Goldsmith & Stinson(No 2) [2023] FedCFamC1A 25

In the Marriage of Kerr (1983) 8 Fam LR 1023

Queensland & JL Holdings (1997) 189 CLR 146

Ravasini & Ravasini (1983) FLC 91-312

Slapp & Slapp (1989) FLC 92-022

Division: Division 2 Family Law

Number of paragraphs: 57

Date of hearing: 13 April 2023

Place: Adelaide

Counsel for the Applicant: Mr Lewis

Solicitor for the Applicant: Women’s Legal Service SA

The Respondent: Self-Represented
ORDERS

ADC 2571 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HANNEGAN

Applicant

AND:
MR ORLANDO

Respondent

order made by:

JUDGE DICKSON

DATE OF ORDER:

5 May 2023

UPON NOTING:
A.The submission made on behalf of the applicant that she will meet all mortgage repayments for the B Street, Town C property as and from the date of vacant possession by the respondent until the date of settlement of sale of the B Street, Town C property and will not seek repayment from the respondent arising therefrom.

THE COURT ORDERS:
1.That the respondent’s oral application for adjournment of the applicant’s Amended Application for Enforcement filed 15 March 2023 (‘the said Amended Application’) is dismissed.
2.That no later than 4.00pm on the 4 June 2023 the respondent do vacate the property situate at B Street, Town C in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio … (‘the B Street, Town C property’) and do remove all of his furniture and personal effects and belongings contemporaneously at the time of vacating the B Street, Town C property.
3.That in the event that the respondent fails to comply with paragraph 2 herein, an enforcement warrant do issue pursuant to rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) authorising an enforcement officer to enter the B Street, Town C property and give possession of the B Street, Town C property to the applicant.
4.That pursuant to rule 11.62 of the said Rules, the enforcement officer may, when enforcing the warrant (with such assistance as the enforcement officer requires, and, if necessary, by force)…

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 Hannegan & Orlando

Details

AGLC: Hannegan & Orlando [2023] FedCFamC2F 516
Case: [2023] FedCFamC2F 516
Decision Date

CaseChat Overview and Summary

The parties to this proceeding are Ms Hannegan and Mr Orlando. The dispute involves the enforcement of final property settlement orders in respect of two properties, with the applicant seeking vacant possession of the B Street, Town C property. The Federal Circuit and Family Court of Australia (Division 2) was the court that heard the case.

The legal issues the court was required to decide were whether the respondent's oral application for adjournment of the applicant's Amended Application for Enforcement should be granted and whether orders should be made as sought by the applicant or on such other terms as the court considered just in all of the circumstances.

The court dismissed the respondent's oral application for adjournment, finding that the respondent had had ample opportunity to seek legal advice as to any remedies that may be available to him in relation to the predicament he now faces. The court concluded that the time had now come for it to intervene and provide certainty so as to sever the parties' financial affairs and to give effect to section 81 of the Family Law Act 1975 (Cth) and the final consent orders.

In respect of the applicant's Amended Application for Enforcement, the court found that the respondent should have 30 days in which to move from the B Street, Town C property and give vacant possession to the applicant. Should the respondent fail to vacate the B Street, Town C property, the court made orders for an enforcement officer to enter the property and to take possession of the property. The court declined to make an order granting the applicant the power to make all decisions regarding the sale of the B Street, Town C property, finding that such an order should have been properly pleaded and with the respondent given sufficient notice under the Rules to be heard. The court also made an order for the respondent to pay the applicant's costs in relation to the Amended Application, fixed in the sum of $1,020 plus GST. The sum shall be deducted from the amount payable to the respondent at settlement of the B Street, Town C property.

The final orders of the court are that the respondent's oral application for adjournment of the applicant's Amended Application for Enforcement is dismissed, that the respondent vacate the B Street, Town C property by 4.00pm on 4 June 2023, and that an enforcement warrant issue authorising an enforcement officer to enter the B Street, Town C property and give possession of the property to the applicant if the respondent fails to vacate the property. The court also varied an order to reflect the correct title of the Court's delegate empowered to take certain steps, and ordered the respondent to pay the applicant's costs in relation to the Amended Application.

Orders