Massalski & Riley (No 8) - [2023] FedCFamC1F 288

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Massalski & Riley (No 8) [2023] FedCFamC1F 288

File number(s): SYC 496 of 2015

Judgment of: HARPER J

Date of judgment: 6 April 2023

Catchwords:
FAMILY LAW – ENFORCEMENT – Where an enforcement order was made and a receiver was appointed to the property of the wife – Order 11 made on 5 August 2022 for the wife to deliver to the receiver vacant possession of the property – Where receiver seeks orders that a warrant of possession be made requiring the wife to vacate the property and give vacant possession of the property to the receiver – Wife does not intend to comply with Court orders – Order that the warrant be made.

FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has filed a further specious Notice of a Constitutional Matter – Where wife sought leave for the proceedings to be adjourned – Leave refused – Wife wholly unsuccessful – Costs ordered on a party/party basis.

Legislation:
Family Law Act 1975 (Cth) s 102QB

Judiciary Act 1903 (Cth)

Cases cited:
Massalski & Riley [2019] FamCA 1013

Massalski & Riley (No 3) [2022] FedCFamC1F 562

Massalski & Riley (No 6) [2022] FedCFamC1F 1029

Pitman & Hynes [2021] FamCA 300

Division: Division 1 First Instance

Number of paragraphs: 19

Date of hearing: 6 April 2023

Place: Sydney

The Applicant: Litigant in person

Solicitor for the First Respondent: Christopher Farah Solicitor

Solicitor for the Second Respondent: Byrnes Legal
ORDERS

SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MASSALSKI

Applicant

AND:
MR AG

First Respondent

MR RILEY

Second Respondent

order made by:

HARPER J

DATE OF ORDER:

6 APRIL 2023

THE COURT ORDERS THAT:
1.The Applicant Wife’s (wife’s) application for adjournment is dismissed.
2.Within 14 days of this order, the wife must wholly comply with Order 11 made by this Court on 5 August 2022 which provided that the wife is to deliver up to the First Respondent (“receiver”) vacant possession of Unit 1, F Street, Suburb G NSW being the whole of the land more particularly described in folio identifier …(“Property”), including all fixtures and fittings currently upon that property in good order and repair and to deliver up to the receiver and/or make available for collection by the receiver all keys, remote control units, and other security devices for the Property in good order and repair.
3.Should the wife fail to comply with Order 2 the Sheriff, the Marshal of this Court, officers of the Australian Federal Police and officers of the New South Wales State Police are hereby directed for the purpose of giving effect to Order 2 forthwith, with such assistance as they may require, and if necessary, by force, to enter the Property and cause the Applicant, Ms Massalski and any other persons present, to immediately vacate the Property, and for so doing, these orders be your sufficient authority.
4.A registrar of this Court can, and is directed to, sign the…

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 Massalski & Riley (No 8)

Details

AGLC: Massalski & Riley (No 8) [2023] FedCFamC1F 288
Case: [2023] FedCFamC1F 288
Decision Date

CaseChat Overview and Summary

This case involves the parties of Massalski and Riley, in which an enforcement order was made, and a receiver was appointed to the property of the wife. The receiver sought orders for a warrant of possession requiring the wife to vacate the property and give vacant possession to the receiver. The wife did not intend to comply with the court orders. The court had to decide whether the warrant should be made and whether the wife's application for adjournment was valid. The court also had to decide on the costs of the application.

The court found that the wife's application for adjournment was without foundation and came close to constituting an abuse of process. The court was not persuaded that the second Notice of a Constitutional Matter raised any fresh matter, which could constitute a constitutional matter. The court was satisfied that the wife's position was that she had no intention of complying with the orders of the court and continued to rehash matters which had been the subject of earlier submissions and evidence ad nauseam. The court made orders as sought by the receiver in paragraphs 3 to 7 of his case outline filed on 6 February 2023. The court also made an order for the husband's costs to be paid as agreed or assessed on a party/party basis.

The court ordered that the wife must comply with Order 11 made by the court on 5 August 2022, which provided that the wife is to deliver up to the First Respondent ("receiver") vacant possession of the property, including all fixtures and fittings currently upon that property in good order and repair. The court also directed the sheriff, the Marshal of the court, officers of the Australian Federal Police and officers of the New South Wales State Police to enter the property and cause the wife and any other persons present to immediately vacate the property if the wife failed to comply with Order 2. The wife was directed to vacate the property together with all her possessions and belongings within 14 days of the date of the order, and must not occupy, access, approach or otherwise come into contact with the property after that date.

Orders