McMillan & McMillan (No 3) - [2016] FamCA 1141

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN (NO 3)

[2016] FamCA 1141

FAMILY LAW – ENFORCEMENT WARRANT – Application to stay warrant – Whether the Enforcement Warrant over the husband’s property should be stayed – Whether an injunction should be ordered against the wife for the removal of the writ over the husband’s property – Where the encumbered property is required to borrow funds for the payment of council rates – Where the balance of convenience favours the matter’s determination at trial.

Family Law Act 1975 (Cth) ss 34(1) and 114(3),

APPLICANT:

Mr McMillan

RESPONDENT:

Ms McMillan

FILE NUMBER:

CSC

355

2015

DATE DELIVERED:

30 September 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

30 September 2016

REPRESENTATION

THE APPLICANT:

In Person

SOLICITOR FOR THE RESPONDENT:

Mr Lago

Williams Graham Carman Solicitors

Orders

IT IS ORDERED BY CONSENT

That until further order in these proceedings, the Enforcement Warrant filed on behalf of the wife on 16 June 2016 is stayed.

IT IS FURTHER ORDERED

That paragraph 2 of the orders sought contained within the Application in a Case filed 19 September 2016 is dismissed.
The wife’s costs of and incidental to the hearing of the Application in a Case today are reserved to the Judge who hears and determines the substantive proceedings.

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 (No 3) 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 BRISBANE

FILE NUMBER: CSC 355 of 2015

Mr McMillan

Applicant

And

Ms McMillan

Respondent

REASONS FOR JUDGMENT

Before me today is an Application in a Case that was filed in extant proceedings in the Cairns Registry of this Court on 19 September 2016. The matter was sought to be listed by the applicant, who I will describe as the husband out of convenience, as urgent and was therefore listed for hearing by me in the registry today here in Brisbane instead of in the Cairns registry. It turns out that the husband, who I understand normally lives in C Town, was in Brisbane for work purposes and has been able to attend in Court personally in the prosecution of this Application in a Case. He has appeared before me in person and is representing himself.
The respondent, who I will describe as the wife, is appearing by telephone represented by her solicitor, Mr Lago. I understand them to be in Mr Lago’s office within the offices that his firm occupies in C Town.
The 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 (No 3)

Details

AGLC: McMillan & McMillan (No 3) [2016] FamCA 1141
Case: [2016] FamCA 1141
Decision Date: 30 September 2016

CaseChat Overview and Summary

In *McMillan & McMillan (No 3)*, Forrest J of the Federal Circuit Court of Australia considered an application by the wife concerning an enforcement warrant and a related application filed by the wife. The dispute involved the enforcement of orders previously made in the proceedings.

The primary legal issue before the court was whether to grant a stay of the Enforcement Warrant filed by the wife on 16 June 2016. Additionally, the court was required to determine an application made by the wife on 19 September 2016, specifically paragraph 2 of the orders sought within that application.

The court's decision was made by consent of the parties. Consequently, Forrest J ordered that the Enforcement Warrant filed by the wife on 16 June 2016 be stayed until further order. Furthermore, paragraph 2 of the orders sought in the wife's application filed on 19 September 2016 was dismissed. The costs associated with the hearing of the wife's application were reserved to the judge who would ultimately hear and determine the substantive proceedings.

Orders

Orders of the court

IT IS ORDERED BY CONSENT

That until further order in these proceedings, the Enforcement Warrant filed on behalf of the wife on 16 June 2016 is stayed.

IT IS FURTHER ORDERED

That paragraph 2 of the orders sought contained within the Application in a Case filed 19 September 2016 is dismissed.

The wife’s costs of and incidental to the hearing of the Application in a Case today are reserved to the Judge who hears and determines the substantive proceedings.

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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