Pinney & Pinney (No 4) - [2023] FedCFamC1F 425

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pinney & Pinney (No 4) [2023] FedCFamC1F 425

File number(s): SYC 792 of 2022

Judgment of: MCCLELLAND DCJ

Date of judgment: 23 May 2023

Catchwords: FAMILY LAW – APPLICATION IN A PROCEEDING – Where the husband seeks orders requiring the wife to vacate the former matrimonial home – Where final judgment has been delivered – Sale of the property ordered – No expert evidence to support the husband’s contention that the property’s marketability is increased if it is vacant – Where the wife and the parties’ children have moved residences on at least 10 occasions in the last 14 months – Impact of the orders on the children – Application dismissed.

Legislation: Family Law Act 1975 (Cth) s 114

Cases cited: Jyotisha & Jyotisha [2016] FamCA 738

Division: Division 1 First Instance

Number of paragraphs: 31

Date of hearing: 23 May 2023

Place: Sydney

The Applicant: Litigant in person

Counsel for the Respondent: Mr Grew

Solicitor for the Respondent: Lander & Rogers
ORDERS

SYC 792 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PINNEY

Applicant

AND:
MS PINNEY

Respondent

order made by:

MCCLELLAND DCJ

DATE OF ORDER:

23 MAY 2023

THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 20 April 2023 and amended 2 May 2023 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pinney & Pinney has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:

This matter has come before me consequent to my delivery of judgment on 19 May 2023 and relevant orders that I made on that day, including listing the matter before me today for argument as to whether an additional machinery order should be made compelling the wife to vacate the premises at C Street, Suburb D (“the property”).
The background of the matter is set out in my reasons for judgment of 19 May 2023. In turn, that judgment refers to several additional applications that were made consequent to the finalisation of the substantive hearing of the matter relating to the question of the wife’s occupancy of the property consequent to conclusion of the hearing and awaiting the settlement of the sale of the property.
The judgment that I handed…

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 Pinney & Pinney (No 4)

Details

AGLC: Pinney & Pinney (No 4) [2023] FedCFamC1F 425
Case: [2023] FedCFamC1F 425
Decision Date

CaseChat Overview and Summary

In the matter of Pinney & Pinney (No 4), the husband sought orders compelling the wife to vacate the former matrimonial home. The Federal Circuit and Family Court of Australia (Division 1) was tasked with deciding the application, which was brought after the final judgment had been delivered. The husband argued that the property's marketability would be enhanced if it was vacant and that the wife's reoccupation of the property indicated her intent to delay the sale. The wife, represented by Mr Grew, contended that the application was redundant due to the discharge of previous orders and that requiring the wife to vacate the property would cause further disruption to the children, who had already moved residences on multiple occasions.

The court dismissed the husband's application, finding that there was no expert evidence to support the husband's contention that the property's marketability would be increased if it was vacant. The court also considered the impact of the orders on the children, who had moved residences at least ten times in the past 14 months. The court concluded that compelling the wife to vacate the property would cause further disruption to the children and dismissed the application on that basis, among others.

The court's decision highlights the importance of considering the impact of orders on children in family law proceedings, as well as the need for expert evidence to support claims regarding property marketability. The court also emphasised the role of the court in ensuring procedural fairness by allowing parties to present their arguments in light of the most up-to-date circumstances. The final orders dismissed the husband's application and no further judicial function remains to be discharged in the matter.

Orders