Hilton and Hilton

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILTON & HILTON [2016] FCCA 2799

Catchwords:
FAMILY LAW – Application to amend final orders – not a slip rule – application misconceived.

Legislation:

Family Law Act 1975, s.79A

Federal Circuit Court Rules 2001 (Cth), r.25B.62(2)

Cases cited:

Varley & Varley [2016] FCCA 2609

Applicant: MS HILTON

Respondent: MR HILTON

File Number: MLC 7412 of 2015

Judgment of: Judge Harland

Hearing date: 18 October 2016

Date of Last Submission: 18 October 2016

Delivered at: Melbourne

Delivered on: 18 October 2016

REPRESENTATION

Counsel for the Applicant: Ms Hannon

Solicitors for the Applicant: Ryan Carlisle Thomas

Counsel for the Respondent: Mr Glezakos

Solicitors for the Respondent: Le Brun Glezakos

ORDERS

1. That the Husband vacate the property situate at, Property E (“the property”) within 21 days of this order.

2. That in default of the husband vacating the property and upon proof by affidavit of the husband’s failure to vacate the Court issue a warrant pursuant to rule 25B.62(2) of the Federal Circuit Court Rules 2001 (Cth) for the possession of the property authorising the an enforcement officer to enter the property described in the warrant and give possession of the property to the wife.

3. That the husband pay the costs of the wife fixed in the sum of $3,422.50 with that amount to be deducted from the husband’s share of the proceeds.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7412 of 2015

MS HILTON

Applicant

And

MR HILTON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter I made final property orders on an undefended basis on 4 November 2015.  The orders provided for the former matrimonial home, which was the main asset of the parties, to be sold and the net proceeds to be divided equally.  The parties were otherwise to keep what they had in their possession.  The husband was, and remains, in occupation of the home.  The wife filed an application to enforce the orders on 15 March 2016.  The return date of that application was adjourned by consent and some interim consent orders were made in chambers, which provided for the husband to be responsible for the payment of any arrears of the mortgage and rates, the appointment an agreed real estate agent and for the husband to prepare the property for sale.

3. The matter has come before me today for contested argument. The husband filed a response and supporting documents on 23 September 2016, seeking orders pursuant to section 79A of the Family Law Act 1975 (Cth) (“Family Law Act”) and seeking a just and equitable distribution of property. Section 79A applications need careful particularisation and simply seeking orders that…