Nestor and Ripley & Anor

In the matter of *Nestor and Ripley & Anor*, McEvoy J of the Family Court of Australia considered an application by the husband seeking enforcement of previous property settlement orders. The dispute arose from the husband's assertion that the wife had frustrated the sale of a property located at E Town, Victoria, which had been ordered to be sold. The husband sought a warrant of possession under rule 20.54 of the *Family Law Rules 2004* (Cth) to require the wife to vacate the property and provide vacant possession to his agents.

The primary legal issue before the court was whether to grant the husband's application for a warrant of possession to facilitate the sale of the E Town property, and consequently, to discharge the wife's sole use and occupation of that property. The court was also required to determine the terms and conditions under which possession would be granted, the wife's obligations regarding the property and its sale, and the extent of the husband's authority to manage the sale process. Furthermore, the court had to consider the appropriate costs orders.

McEvoy J reasoned that the wife's actions, including the operation of Airbnb accounts at the property, were inconsistent with the previous orders for sale. The court ordered the discharge of the wife's sole use and occupation of the E Town property. A warrant of possession was ordered to issue, requiring the wife to vacate the property and deliver vacant possession within 14 days of the lifting of stage-4 COVID-19 restrictions in Victoria. The husband was granted extensive authority to manage the sale process, including instructing agents and lawyers, signing necessary documents, and undertaking reasonable maintenance and repairs to prepare the property for sale. The wife was restrained from re-entering the property or causing others to do so, and from devaluing or damaging the property.

The court ordered that the execution of the warrant of possession be stayed until 14 days following the lifting of stage-4 COVID-19 restrictions in Victoria. The wife was ordered to pay the husband's and the second respondent's costs of the application on an indemnity basis, to be met from her entitlement to the proceeds of sale of the E Town property. The husband's application filed on 24 July 2020 was otherwise dismissed.