FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Holloway & Reilly [2024] FedCFamC2F 1888
File number(s): MLC 6250 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – Property – where leave was granted to file an application out of time – where the applicant seeks the sale of the property – undefended hearing – where the court is satisfied the respondent was notified of proceedings – final property orders. Legislation: Family Law Act 1975 (Cth) ss 90SF, 90SM and 117 Cases cited: Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143
Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 55 Date of hearing: 16 December 2024 Place: Melbourne Counsel for the Applicant: Ms Crotty Solicitor for the Applicant: Leslie Family Law The Respondent: No Appearance ORDERS
MLC 6250 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HOLLOWAY
Applicant
AND: MS REILLY
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.Pursuant to section 44(6) of the Family Law Act 1975 (Cth), the Applicant, Mr Holloway (“the Applicant”), be and is granted leave to prosecute this Application out of time nunc pro tunc.
2.Within 42 days of the date of these orders, the parties do all things and sign all documents necessary to place the property situate at and known as B Street, Town C (“the property”) on the market for sale (“the sale”).
3.For the purposes of the sale:
(a)The Applicant is to send to the Respondent, Ms Reilly (“the Respondent”) via her email address of …@..., a list of three proposed sale agents from which the Respondent is to select one via return email;
(b)In the event the Respondent fails to select one of the sale agents nominated by the Applicant in accordance with the preceding subparagraph within 28 days of receiving the Applicant’s nominations, the Applicant proceed to select a sales agent;
(c)The Applicant follow all directions and recommendations of the sales agent including but not limited to the sale price and readying the property for sale;
(d)The Applicant is to keep the Respondent apprised in relation to the progress of the sale; and
(e)The Respondent arrange a third party to undertake the removal of an outbuilding located at the back yard of the property at a mutually agreed time and date, and in the event the Respondent fails to do so within 42 days of the date of these orders, the Applicant be authorised to do all things necessary to remove the outbuilding.
4.Pending settlement of the sale:
(a)The Applicant is to have sole right to occupy the property to the exclusion of the Respondent;
(b)The Applicant will pay all mortgage instalments and other outgoings in relation to the property as and…
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- Holloway & Reilly [2024] FedCFamC2F 1888
- Case
- [2024] FedCFamC2F 1888
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CaseChat Overview and Summary
The court considered the provisions of section 44(6) of the Family Law Act 1975 (Cth) and found that Mr Holloway had provided sufficient justification for the delay. The court was satisfied that the Respondent was notified of the proceedings and had not raised any objection to the application being heard out of time. With respect to the sale of the property, the court directed the Applicant to list three proposed sale agents from which the Respondent was to select one. If the Respondent failed to select an agent, the Applicant would proceed to select one. The Applicant was also required to follow the sale agent’s directions and recommendations, including setting the sale price and preparing the property for sale. The Respondent was required to arrange for the removal of an outbuilding within a specified timeframe. During the sale process, the Applicant was to have sole right to occupy the property and was responsible for mortgage payments and other outgoings. The parties were to hold their interests in the property on trust and had liberty to apply in relation to the sale.
In its orders, the court granted Mr Holloway leave to prosecute the application out of time and directed the sale of the property. It outlined specific steps for the sale, including the selection of a sale agent and the removal of an outbuilding. The court also addressed the division of the proceeds from the sale, specifying the order in which costs, mortgage payments, and other debts were to be paid, followed by the division of the remaining balance. The Respondent was required to list items she wished to retain from the property, and the parties were to arrange a time for her to collect those items. The court also detailed the division of personal property, including vehicles and specific items listed in Annexure “A”. Finally, the court severed any joint tenancy of the parties in any real or personal estate and required each party to indemnify the other against any liability encumbering any item of property to which they were entitled.
Orders
Orders of the court
MLC 6250 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HOLLOWAY
Applicant
AND:
MS REILLY
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1. Pursuant to section 44(6) of the Family Law Act 1975 (Cth), the Applicant, Mr Holloway (“the Applicant”), be and is granted leave to prosecute this Application out of time nunc pro tunc.
2. Within 42 days of the date of these orders, the parties do all things and sign all documents necessary to place the property situate at and known as B Street, Town C (“the property”) on the market for sale (“the sale”).
3. For the purposes of the sale:
(a) The Applicant is to send to the Respondent, Ms Reilly (“the Respondent”) via her email address of …@..., a list of three proposed sale agents from which the Respondent is to select one via return email;
(b) In the event the Respondent fails to select one of the sale agents nominated by the Applicant in accordance with the preceding subparagraph within 28 days of receiving the Applicant’s nominations, the Applicant proceed to select a sales agent;
(c) The Applicant follow all directions and recommendations of the sales agent including but not limited to the sale price and readying the property for sale;
(d) The Applicant is to keep the Respondent apprised in relation to the progress of the sale; and
(e) The Respondent arrange a third party to undertake the removal of an outbuilding located at the back yard of the property at a mutually agreed time and date, and in the event the Respondent fails to do so within 42 days of the date of these orders, the Applicant be authorised to do all things necessary to remove the outbuilding.
4. Pending settlement of the sale:
(a) The Applicant is to have sole right to occupy the property to the exclusion of the Respondent;
(b) The Applicant will pay all mortgage instalments and other outgoings in relation to the property as and when they fall due;
(c) Each party holds their interest in the property on trust pursuant to these orders;
(d) The parties have liberty to apply in relation to the sale.
5. Upon settlement of the sale of the property, the proceeds of sale be applied as follows:
(a) Firstly, to pay all costs and commissions in relation to the sale;
(b) Secondly, to discharge the mortgage secured over the property;
(c) Thirdly, 50% of the balance to be paid to the Applicant divided;
(d) Fourthly, a payment be made to the Applicant for legal costs in the sum of $17,400;
(e) Fifthly, the balance to be paid to the Respondent.
6. Within 28 days of the date of these orders, the Respondent provide to the Applicant (via solicitors) a list of items that she wishes to retain from the property, with such list not to include any of the Applicant’s belongings listed at Annexure “A” to these orders.
7. Upon the Applicant’s receipt of the list provided by the Respondent in accordance with the preceding order, the parties arrange (via solicitors if possible) a time and date within 21 days at which the Respondent is to arrange a third-party removalist to attend the property to collect the items in the list.
8. In the event the Respondent fails to comply with paragraphs 6 and/or 7 herein, the Applicant do all things necessary to arrange for any items that belong to the Respondent to be returned to the Respondent and in the event he is unable to do so, he is to dispose of those items as he deems appropriate.
9. The Applicant retain to the exclusion of the Respondent:
(a) His Motor Vehicle 1;
(b) His Motor Vehicle 2;
(c) His Motor Vehicle 3; and
(d) The items listed at Annexure “A” to these orders.
10. The Respondent retain to the exclusion of the Applicant:
(a) Her Motor Vehicle 4;
(b) Her Motor Vehicle 5; and
(c) Her interest in the Reilly Family Trust.
11. Unless otherwise specified in these orders and save for the purposes of enforcing monies due under these or subsequent orders:
(a) Each party be solely entitled to the exclusion of the other party to all property in their names (including superannuation and choses in action);
(b) Money standing to the credit of the parties in any joint bank account shall be divided equally between the parties and the account thereafter closed;
(c) Insurance policies remain the sole property of the beneficiary named thereon;
(d) Each party be solely responsible for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f) Each party hereby foregoes any claim they may have to any superannuation benefit and / or interest in any trust or deceased estate that is payable to or belonging to or owned by the other, save as provided for in these Orders.
“Annexure A”
(i) Computer equipment (including old laptop and desktop);
(ii) Musical instrument;
(iii) Tools;
(iv) Game console / stereo / sound bar;
(v) Camping equipment;
(vi) Firearms;
(vii) Vehicle;
(viii) Helmet;
(ix) Safety equipment.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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