Riley and Massalski - [2016] FamCA 1169

FAMILY COURT OF AUSTRALIA

RILEY & MASSALSKI

[2016] FamCA 1169

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS –Where the Wife sought a variation of previous orders made in relation to the parties’ property interests – Consideration of section 117(2A) of the Family Law Act 1975 (Cth) Where the Court finds that the Wife’s Application is wholly unsuccessful –Application dismissed.

FAMILY LAW – COSTS – Where the wife is ordered to pay the costs of these proceedings.

Family Law Act 1975(Cth), s 117(2A)

APPLICANT:

Mr Riley

RESPONDENT:

Ms Massalski

FILE NUMBER:

SYC

496

2015

DATE DELIVERED:

3 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

3 June 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Russell Byrnes Solicitor

FOR THE RESPONDENT:

In Person

Orders

The parties are to do all things and acts and sign all documents necessary to facilitate Unit 2 of the property known and situated at F Street, Suburb G, being rented out pursuant to Order 12 of the Orders made on 11 March 2016 including, without limiting the full effect of this Orders, within 14 days:
a.         The respondent, Ms Massalski, (“the respondent”) is to vacate Unit 2;
b.         The respondent is to remove all her belongings from Unit 2 and the     garage to Unit 2;
c.         The respondent is to restore the power to the garage door motor of Unit         B and remove the lock and chain from the gate at the rear of such     garage, and do all things otherwise necessary to enable to applicant to           have access to the garage.
Pending Unit 2 being rented out, the parties are to share the cost of maintenance in respect to both Unit 1 and Unit 2.
Pending the property being subdivided, the parties are to pay all council rates equally on or before the due dates for payment of each instalment.
The matter is referred to Registrar Cameron for a procedural listing including referring the matter to a Conciliation Conference.
The parties are not to file any further Applications in a Case in the proceedings without leave of the Court or until such time as the parties attend a Conciliation Conference.
The respondent is to pay the costs of the application associated with today’s hearing on a party / party basis, with such costs to be paid upon finalising of the property 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 Riley & Massalski 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 SYDNEY

FILE…

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 Riley and Massalski

Details

AGLC: Riley and Massalski [2016] FamCA 1169
Case: [2016] FamCA 1169
Decision Date: 3 June 2016

CaseChat Overview and Summary

In *Riley and Massalski*, heard by McClelland J, the dispute concerned orders relating to a property at F Street, Suburb G, specifically Unit 2. The orders made on 11 March 2016, and further elaborated upon in the present judgment, dealt with the occupation and management of the property pending its subdivision and rental.

The court was required to determine the specific actions to be taken by the parties to facilitate the rental of Unit 2, including the respondent vacating the premises and removing her belongings, and ensuring access to the garage. Further issues addressed included the sharing of maintenance costs for both units and the payment of council rates pending subdivision. The court also considered the filing of further applications and the costs associated with the hearing.

McClelland J ordered that the respondent, Ms Massalski, was to vacate Unit 2 and remove all her belongings within 14 days. The respondent was also directed to restore power to the garage door motor and remove a lock and chain from the rear gate to enable the applicant access to the garage. Pending Unit 2 being rented out, the parties were to share maintenance costs for both units equally. Furthermore, until the property was subdivided, the parties were to pay council rates equally on or before their due dates. The court also stipulated that no further applications were to be filed without leave or prior to a conciliation conference. The respondent was ordered to pay the costs of the application on a party/party basis, to be finalised upon the conclusion of the property proceedings.

Orders

Orders of the court

The parties are to do all things and acts and sign all documents necessary to facilitate Unit 2 of the property known and situated at F Street, Suburb G, being rented out pursuant to Order 12 of the Orders made on 11 March 2016 including, without limiting the full effect of this Orders, within 14 days:

a. The respondent, Ms Massalski, (“the respondent”) is to vacate Unit 2;

b. The respondent is to remove all her belongings from Unit 2 and the garage to Unit 2;

c. The respondent is to restore the power to the garage door motor of Unit B and remove the lock and chain from the gate at the rear of such garage, and do all things otherwise necessary to enable to applicant to have access to the garage.

Pending Unit 2 being rented out, the parties are to share the cost of maintenance in respect to both Unit 1 and Unit 2.

Pending the property being subdivided, the parties are to pay all council rates equally on or before the due dates for payment of each instalment.

The matter is referred to Registrar Cameron for a procedural listing including referring the matter to a Conciliation Conference.

The parties are not to file any further Applications in a Case in the proceedings without leave of the Court or until such time as the parties attend a Conciliation Conference.

The respondent is to pay the costs of the application associated with today’s hearing on a party / party basis, with such costs to be paid upon finalising of the property 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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