MCMILLAN & MCMILLAN - [2017] FamCA 773

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN

[2017] FamCA 773

FAMILY LAW – Property – Enforcement warrant – Where debtor seeking stay of proceedings pending appeal – Where appeal without prospects of success – Stay refused.

FAMILY LAW – Property – Enforcement – Where Enforcement warrant issued for incorrect amount – Where creditor wishes for warrant to be dismissed or stayed on grounds frivolous or vexatious – Where no prejudice to debtor if warrant stayed – Warrant permanently stayed.

Family Law Act 1975 (Cth) ss 118
Family Law Rules 2004 (Cth) rr 20.09, 22.11

McMillan & McMillan [2016] FamCA 387
McMillan & McMillan(No 3) [2016] FamCA 1141
McMillan & McMillan (No 2) [2016] FamCA 894
McMillan & McMillan [2017] FamCAFC 88
Aldridge & Keeton (Stay Appeal) [2009] FamCAFC 106

APPLICANT:

Mr McMillan

RESPONDENT:

Ms McMillan

FILE NUMBER:

CSC

355

2015

DATE DELIVERED:

28 September 2017

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

10 August 2017

REPRESENTATION

THE APPLICANT:

In person

SOLICITORS FOR THE RESPONDENT:

Williams Graham Carman Solicitors

Orders

The execution warrant issued 16 June 2016 be permanently stayed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McMillan & McMillan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC355/2015

Mr McMillan

Applicant

And

Ms McMillan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 16 June 2016, at the request of Ms McMillan (“the wife”) a Registrar of the Family Court of Australia issued an enforcement warrant pursuant to Part 2.3 of the Family Law Rules, authorising the seizure and sale of the property of Mr McMillan (“the husband”). This was the second such enforcement warrant issued at the wife’s behest: an earlier enforcement warrant issued on 15 June 2015 was stayed by me on 23 May 2016 for reasons delivered on that day: McMillan & McMillan [2016] FamCA 387.
The matter has a long and complex history, much of which was traversed in my May 2016 reasons. However since then it has continued to take a tortuous path.
By Application in a Case filed 12 September 2016, the husband sought, amongst other things, orders that the 16 June 2016 warrant be dismissed or struck out. However in the material filed in support of that application, the husband, who self-represents, indicated that for various reasons, I should recuse myself from dealing with his application. That application was made returnable on 21 September 2016, however on 19 September 2016, the husband filed a further Application…

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 MCMILLAN & MCMILLAN

Details

AGLC: MCMILLAN & MCMILLAN [2017] FamCA 773
Case: [2017] FamCA 773
Decision Date: 28 September 2017

CaseChat Overview and Summary

In *McMillan & McMillan*, the Family Court of Australia considered an application by a debtor for a stay of enforcement proceedings pending an appeal, and a separate application by the creditor to either dismiss or stay an enforcement warrant that had been issued for an incorrect amount. The debtor sought to halt the enforcement of property orders, while the creditor wished to resolve issues surrounding an incorrectly issued warrant.

The primary legal issues before the Court were whether the debtor's appeal had sufficient prospects of success to warrant a stay of proceedings, and whether the enforcement warrant, having been issued for an incorrect amount, should be dismissed or stayed on the grounds that it was frivolous or vexatious. The Court also had to consider the prejudice, if any, to the debtor if the warrant were to be stayed.

Her Honour Tree J determined that the debtor's appeal lacked any real prospects of success, and therefore refused the application for a stay of proceedings. However, regarding the enforcement warrant, the Court found that it had been issued for an incorrect amount. Despite the creditor's submission that the warrant was frivolous or vexatious, the Court concluded that no prejudice would be suffered by the debtor if the warrant were stayed. Consequently, the Court ordered that the execution warrant issued on 16 June 2016 be permanently stayed.

Orders

Orders of the court

The execution warrant issued 16 June 2016 be permanently stayed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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