Molenaar & Molenaar (No 3)

In the matter of *Molenaar & Molenaar (No 3)*, heard in the Federal Circuit Court of Australia, Ms Molenaar (the Wife) sought orders against Mr Molenaar (the Husband) concerning the sale of a property. The Wife sought orders for the Husband to vacate the property, for her to be solely responsible for its sale, and for the Husband to pay her costs. The Husband did not appear at the hearing, though he had been properly served with the Wife's application.

The primary legal issue before the Court was the appropriate procedure for obtaining a warrant of possession for real property, specifically in light of Rule 25B.62 of the Federal Circuit Court Rules (Cth). The Wife's counsel argued that a two-step process was required: first, an order granting possession, followed by a separate application for a warrant of possession after the respondent had received at least seven days' notice of the possession order.

McNab J accepted the Wife's submissions, adopting a cautious approach to the enforcement of possession orders. The Court reasoned that adherence to the process outlined in Rule 25B.62 was appropriate. Consequently, the Court made orders entitling the Wife to possession of the property for the purpose of completing its sale, requiring the Husband to vacate within 14 days, and detailing the method of service of these orders. The matter was adjourned to allow the Wife to seek a warrant for possession on a future date, provided she could demonstrate compliance with the service orders. The Court also ordered the Husband to pay the Wife's costs of the application, noting that the application was necessitated by the Husband's non-compliance with previous orders.