McMillan & McMillan

Case [2016] FamCA 387


FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN [2016] FamCA 387

FAMILY LAW – PROPERTY – S105 Application for enforcement – application by the wife for enforcement of orders – consideration of the discretionary power of the Court to enforce orders pursuant to section 105 of the Family Law Act (Cth) 1975 – where the equitable bar of laches is not applicable – where delay per se does not readily excite equitable intervention – relevance of equitable defences – limitation periods for enforcement of judgement – limitation periods in relation to recovery of interest.

Family Law Act 1975 (Cth) ss 80, 84, 105, 105(1)
Family Law Rules 2004 (Cth) r 20.01(2)(f), 20.05, 20.07, 20.09(1), 20.16, 20.16(1), 20.32(1), 20.42(1), 20.46(1), 20.53
Judiciary Act (1903) (Cth) s 79, 79(3)(a)
Limitations of Actions Act 1974 (Qld) s10(4)
Limitations of Action Act 1958 (Vic) 1958 s5(4), 5(7)
Limitation Act 1969 (NSW) s 17

Barrak v Barakat (2005) FLC 93-234
Collins &Olsthoorn (2005) FLC 93-216
Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494
In the Marriage of Kerr (1983) 8 FamLR 1023
Kerr & Kerr (1983) FLC 91-329
Mullins v Howell (1879) 11 Ch D 763
Peabody & Peabody [2011] FMCAfam 835
Ramsey & Ramsey (1983) FLC 91-301
Prismex Technologies Pty Ltd v Taggert [2013] NSWSC 292
Purcell v F C Trigell Ltd [1970] 3 All ER 671
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2005] QSC 233
Streeter v Western Areas Expiration Pty Ltd (No 2) (2011) 278 ALR 291
Thwaite & Thwaite [1981] 2 All ER 789
Watson & Watson [2006] FMCAfam 293
Yilmaz & Yilmaz [2014] FamCA 663

APPLICANT: Mr McMillan
RESPONDENT: Ms McMillan
FILE NUMBER: CSC 355 of 2015
DATE DELIVERED: 23 May 2016
PLACE DELIVERED: Townsville
PLACE HEARD: Cairns
JUDGMENT OF: Tree J
HEARING DATE: 8 February 2016

REPRESENTATION

THE APPLICANT: In person
COUNSEL FOR THE RESPONDENT: Mr Fellows
SOLICITORS FOR THE RESPONDENT: Williams Graham Carman

Orders

  1. That further action on the wife’s Enforcement Warrant issued 15 June 2015 be permanently stayed.

  2. That otherwise all extant applications be dismissed and the matter removed from the list of active pending cases.

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).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC355/2015

Mr McMillan

Applicant

And

Ms McMillan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

  1. On 15 June 2015, at the request of Ms McMillan (“the wife”) a Registrar of the Family Court issued an Enforcement Warrant pursuant to Part 20.3 of the Family Law Rules authorising the Enforcement Officer to seize and sell the property of Mr McMillan (“the husband”).  By Application in a Case filed 14 September 2015 the husband, amongst other relief, sought an order that the Enforcement Warrant be dismissed, struck out or stayed.  Additionally he sought some more flamboyant relief most of which, as I shall shortly discuss,…

Continue reading McMillan & McMillan

Sign in free to access the full text

Details
AGLC
McMillan & McMillan [2016] FamCA 387
Case
[2016] FamCA 387
Decision Date

CaseChat Overview and Summary

In *McMillan & McMillan*, heard before Tree J, the wife sought to enforce an order made in 2015, while the husband sought to permanently stay further action on that enforcement warrant.

The primary legal issue before the court was whether the wife's application to enforce the 2015 warrant should be permanently stayed. This required the court to consider the principles governing the grant of a permanent stay of enforcement proceedings, particularly in circumstances where there has been a significant delay in seeking enforcement.

Tree J granted the permanent stay, finding that the wife's prolonged inaction in enforcing the warrant had prejudiced the husband. The court applied the principles established in cases concerning the equitable doctrine of laches, which allows for the barring of equitable claims where there has been an unreasonable delay in their assertion, and where that delay has caused prejudice to the respondent. The court determined that the delay in this instance was unreasonable and that the husband had suffered prejudice as a result.

Consequently, the court ordered that further action on the wife’s Enforcement Warrant issued 15 June 2015 be permanently stayed, and that all other extant applications be dismissed, with the matter removed from the list of active pending cases.

Orders

Orders of the court

1.

That further action on the wife’s Enforcement Warrant issued 15 June 2015 be permanently stayed.

2.

That otherwise all extant applications be dismissed and the matter removed from the list of active pending cases.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.