Nest & Nest (No 6) - [2014] FamCA 1209

FAMILY COURT OF AUSTRALIA

NEST & NEST (NO 6)

[2014] FamCA 1209

FAMILY LAW – PRACTICE AND PROCEDURE – Writ of Possession – where husband failed to comply with orders for vacant possession – wife seeks to enforce writ of possession – husband seeks a stay of orders and extension of time to file Notice of Appeal – husband’s application dismissed – orders made for wife to meet costs of Warrant and Writ of Possession from remaining settlement monies.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) 22.11

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43

APPLICANT:

Ms Nest

RESPONDENT:

Mr Nest

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

1821

2008

DATE DELIVERED:

25 November 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

25 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

UPON NOTING the wife has applied for the issue of a Writ of Possession, in terms of Order 5 made by me on 10 November 2014

IT IS ORDERED

That a Writ of Possession do issue with such order to remain in force until 25 November 2015.
That the Application in a Case filed by the husband on 24 November 2014 do stand dismissed.
That the proper costs necessary to execute the Warrant and Writ of Possession are to be paid from the balance of settlement monies remaining in the trust account of I Conveyancing.
Further consideration of the wife’s application for costs be adjourned to 9.15am on 16 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nest & Nest 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 ADELAIDE

FILE NUMBER: ADC 1821 of 2008

Ms Nest

Applicant

And

Mr Nest

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 10 November 2014, orders were made upon the application of the wife seeking that consequential orders be made to enable orders by way of settlement of property, made by me on 16 July 2014, be given effect. The significant aspect to those orders was that upon the default of the husband in respect of the payment of the settlement sum, the husband was required to transfer the property at P Street, Suburb S to the wife.
At the conclusion of that last hearing, I delivered ex tempore reasons which have been settled and provided to each of the parties. I found, at the conclusion of those proceedings, that orders should be put in place which would enable the encumbrances variously situate on the title to the said Suburb S property to be cleared, they being Enforcement and Recovery Unit levies, and an outstanding mortgage to BankSA. It was also apprehended that there may be other outstanding rates, taxes, levies and charges in respect of the property.…

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 Nest & Nest (No 6)

Details

AGLC: Nest & Nest (No 6) [2014] FamCA 1209
Case: [2014] FamCA 1209
Decision Date: 25 November 2014

CaseChat Overview and Summary

In *Nest & Nest (No 6)*, Berman J of the Supreme Court of Victoria considered a dispute between the parties concerning the interpretation and application of a consent order made in earlier proceedings. The core of the disagreement revolved around the extent of the respondent's obligations to provide financial disclosure and the applicant's entitlement to access certain financial documents.

The primary legal issues before the court were: (1) whether the respondent had breached the terms of the consent order by failing to provide adequate financial disclosure; and (2) whether the applicant was entitled to an order compelling the respondent to produce specific financial documents that had not yet been disclosed. The court was required to determine the precise meaning and scope of the disclosure obligations stipulated in the consent order.

Berman J's reasoning focused on the plain meaning of the consent order and the established principles of contractual interpretation as applied to court orders. His Honour found that the respondent's disclosure was insufficient and did not meet the standard required by the order. The court applied the principle that parties are bound by consent orders as if they were contracts, and that such orders should be interpreted to give effect to the clear intentions of the parties at the time they were made. Consequently, the court determined that the applicant was entitled to the further disclosure sought.

The court ordered that the respondent provide the outstanding financial disclosure within a specified timeframe and produce the requested documents.

Orders