FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Riso & Koning [2024] FedCFamC2F 1252
File number(s): MLC 10892 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 30 August 2024 Catchwords: FAMILY LAW – Property – Priority Property Pool case – Application to restrain a solicitor from acting – Where respondent defacto husband claims to have contacted community legal service representing defacto wife – Decision not to restrain legal service from acting for de facto wife – Not in interests of justice to delay proceedings further – Application for extension of time to apply for property orders due to hardship pursuant to section 44(6) accepted – Orders to divide chattels between parties. Legislation: Family Law Act 1975 (Cth) sections 4AA, 44(6) Cases cited: Bansal & Mathai [2023] FedCFamC2F 307 Division: Division 2 Family Law Number of paragraphs: 41 Date of hearing: 30 August 2024 Place: Melbourne Counsel for the Applicant: Ms McCreadie Solicitor for the Applicant: Brimbank Melton Community Legal Centre Solicitor for the Respondent: In Person ORDERS
MLC 10892 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS RISO
Applicant
AND: MR KONING
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
Property the Applicant is to retain
1.The Respondent, Mr Koning (‘the Respondent’) forthwith make thorough and diligent search of his premises, (including inside Vehicle 6 situated thereon) and attempt to locate any personal items that belong to the Applicant, Ms Riso (‘the Applicant’), including but not limited to:
(a)ornaments;
(b)photographs of her children B and C;
(c)photographs of the parties’ children, X and Y; and
(d)any other personal item of the Applicants,
and carefully pack and store any such items as located and advise the Applicant (by her solicitors) of what any such items are (‘the Applicants personal items’).
2.The Applicant retain for her exclusive use and ownership the following:
(a)Motor Vehicle 1;
(b)Vehicle 6;
(c)all funds contained in bank accounts and liabilities under her name;
(d)the Applicant’s personal belongings (as described above) and antique furniture; and
(e)her superannuation entitlements (if any).
3.Within 28 days of these orders and on a date that does not coincide with the Children Court proceeding between the parties, the Applicant and/or her agents attend upon the property of the Respondent, at a time and day nominated by the Applicant’s Solicitors in writing by email no less than 3 days in advance, attend and remove the items described at Order 2(a) ‘Motor Vehicle 1’, Order 2(b) ‘Vehicle 6’ and Order 2(d) ‘the Applicant’s personal belongings and antique furniture.
4.Alternatively to the proceeding order, in regard to Motor Vehicle 1, the Applicant’s personal belongings and the Antique Furniture, in the event of the Applicant elects and requests (from her Solicitors by email to the Respondent), that instead of her collecting Motor Vehicle 1, the Applicant’s personal belongings (if any have been located) and the Antique Furniture, that the Respondent deliver to the Applicant’s premises at a time and day nominated no…
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- Riso & Koning [2024] FedCFamC2F 1252
- Case
- [2024] FedCFamC2F 1252
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CaseChat Overview and Summary
The court found that it was not in the interests of justice to delay proceedings further by restraining the community legal service from representing Ms Riso. The application to restrain the legal service was dismissed. However, the court accepted the application for an extension of time to apply for property orders due to the claimed hardship. The court directed the division of chattels between the parties, specifying which personal items and vehicles each party should retain. The court also issued injunctions to prevent the parties from entering each other’s homes or approaching each other, and mandated that any interactions regarding the collection of items must be accompanied by a police officer. Additionally, the court directed that there be no contemporaneous exchange of chattels between the parties.
The court ordered that Ms Riso retain certain personal items, including photographs and ornaments, along with specific vehicles and her superannuation entitlements. Mr Koning was ordered to retain another vehicle. The court provided detailed instructions for the collection of items from each party’s property, allowing for either party to collect items under certain conditions, or for the items to be delivered if requested by Ms Riso. The court also noted that the collection of items pursuant to these orders would not breach any intervention orders in place. Any failure to comply with the collection orders would result in the other party being free to dispose of the items. The court further noted that the parties could provide copies of the orders to relevant authorities and law enforcement.
Orders
Orders of the court
MLC 10892 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS RISO
Applicant
AND:
MR KONING
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
Property the Applicant is to retain
1. The Respondent, Mr Koning (‘the Respondent’) forthwith make thorough and diligent search of his premises, (including inside Vehicle 6 situated thereon) and attempt to locate any personal items that belong to the Applicant, Ms Riso (‘the Applicant’), including but not limited to:
(a) ornaments;
(b) photographs of her children B and C;
(c) photographs of the parties’ children, X and Y; and
(d) any other personal item of the Applicants,
and carefully pack and store any such items as located and advise the Applicant (by her solicitors) of what any such items are (‘the Applicants personal items’).
2. The Applicant retain for her exclusive use and ownership the following:
(a) Motor Vehicle 1;
(b) Vehicle 6;
(c) all funds contained in bank accounts and liabilities under her name;
(d) the Applicant’s personal belongings (as described above) and antique furniture; and
(e) her superannuation entitlements (if any).
3. Within 28 days of these orders and on a date that does not coincide with the Children Court proceeding between the parties, the Applicant and/or her agents attend upon the property of the Respondent, at a time and day nominated by the Applicant’s Solicitors in writing by email no less than 3 days in advance, attend and remove the items described at Order 2(a) ‘Motor Vehicle 1’, Order 2(b) ‘Vehicle 6’ and Order 2(d) ‘the Applicant’s personal belongings and antique furniture.
4. Alternatively to the proceeding order, in regard to Motor Vehicle 1, the Applicant’s personal belongings and the Antique Furniture, in the event of the Applicant elects and requests (from her Solicitors by email to the Respondent), that instead of her collecting Motor Vehicle 1, the Applicant’s personal belongings (if any have been located) and the Antique Furniture, that the Respondent deliver to the Applicant’s premises at a time and day nominated no less than 3 days in advance by the Applicant in writing (by her solicitors) and on a date a time that does not coincide with the Children Court proceedings, then the Respondent deliver those items to the Applicant instead of the Applicant collecting same as provided in these orders.
5. In the event the Applicant and/or her agents do not collect the items as described at Orders 3 and 4 herein within 28 days of these orders (provided it is not on a date that coincides with the Children’s Court proceedings), the Respondent is at liberty to deal with the items as he wishes and at his expense.
6. The Applicant and/or her agents must not attend the property of the Respondent without the company of a Victorian Police Officer.
7. Save as provided in these orders, the Respondent be and is restrained from damaging or interfering with the items listed in Orders 1 and 2 herein.
8. The Applicant and/or her agents be restrained by injunction from;
(a) entering or attempting to enter the home of the Respondent; and
(b) approaching and/or speaking to the Respondent.
Property the Respondent is to retain
9. The Respondent is to retain for his exclusive use and ownership;
(a) Motor Vehicle 2.
10. The Applicant is to do all acts and things to permit Motor Vehicle 2 to be available for collection by the Respondent at a time and day nominated by the Respondent to the Applicant’s Solicitor which is no less than 3 days in advance on a date that does not coincide with the Children Court proceeding between the parties and no less than 7 days after the Applicant has collected the item described at paragraph 2 OR no less than 7 days after the Applicant has given notice to the Respondent and he has delivered the items described in Order 3 or by the alternative arrangement described in Order 4.
11. The Respondent and/or his agents are restrained by injunction from;
(a) entering or attempting to enter the home of the Applicant; and
(b) approaching and/or speaking to the Applicant.
12. The Applicant and/or her agents be restrained by injunction from damaging and/or interfering with Motor Vehicle 2, and/or any of the property of the Respondent if and when she attends the Respondents property pursuant to these orders.
13. The Respondent and/or his agents must not attend the property of the Applicant without the company of a Victoria Police Officer.
Further orders
14. The parties be at liberty to provide a copy of these sealed orders to any Victorian Police Officer, and/or other Court of the state of Victoria or the Commonwealth of Australia and the collection of these items from the parties’ properties would not be a breach of the current or any Intervention Order.
15. There is to be no contemporaneous changeover of chattels between the parties.
16. In the event Victoria Police are unable to assist the parties as the parties are directed to request by these orders, there be liberty to apply on short notice by email to the Chambers of Judge O’Shannessy at […@…].
17. All extant applications are otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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