Saller & Danell (No 2) - [2017] FamCA 712

FAMILY COURT OF AUSTRALIA

SALLER & DANELL (NO. 2)

[2017] FamCA 712

FAMILY LAW – PROPERTY – procedural orders – application for adjournment – application for extension of time to comply with final orders – application of rule 11.03 of the Family Law Rules 2004 - application dismissed – costs reserved.

Family Law Act 1975 (Cth) s 90SN

Family Law Rules 2004 (Cth) r. 11.02, 11.03

APPLICANT:

Mr Saller

RESPONDENT:

Ms Danell

FILE NUMBER:

SYC

575

2015

DATE DELIVERED:

22 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

22 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE APPLICANT

The Respondent appeared in person

Orders

THE COURT ORDERS THAT:

The wife’s application for an adjournment is dismissed.
The wife’s application for an extension of time to file an Application in a Case and supporting affidavit for variation of the final orders made 16 March 2017 pursuant to the Orders made 28 July 2017 is dismissed.
The matter remains listed for hearing at 10.00am on 15 September 2017 to consider the following issues only:
(a) Whether, as at close of business 16 June 2017, the Applicant had done all that was necessary to comply with the final property Orders made 16 March 2017; and
(b) In the event that the Court finds that the above did not occur, what orders should be made to effect the sale of the L property and the division of the proceeds of sale of that property pursuant to Order 17 of the final property Orders made 16 March 2017.
I DIRECT that within 7 days of the date of these orders, each party serve upon the other and provide to my Chambers a minute of orders sought in relation to the sale of the L property and the division of proceeds of sale of that property.
The parties’ costs of today are reserved.

AND THE COURT NOTES THAT:

A. The wife has not to date filed an Application in a Case and supporting affidavit pursuant to the Orders made 28 July 2017.
B. The husband’s counsel made submissions today as to the issues to be heard on 15 September 2017.

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 Saller & Danell (No.2) 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 NUMBER: SYC 575 of 2015

Mr Saller

Applicant

And

Ms Danell

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This…

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 Saller & Danell (No 2)

Details

AGLC: Saller & Danell (No 2) [2017] FamCA 712
Case: [2017] FamCA 712
Decision Date: 22 August 2017

CaseChat Overview and Summary

In *Saller & Danell (No 2)*, McClelland J of the Family Court of Australia considered applications made by the wife for an adjournment and for an extension of time to comply with previous orders. The dispute concerned the division of property and the wife's attempts to vary final orders made on 16 March 2017.

The primary legal issues before the court were whether to grant the wife's application for an adjournment of the proceedings and whether to grant her an extension of time to file an Application in a Case and supporting affidavit seeking variation of the final property orders. The court was also required to determine the specific issues to be addressed at the upcoming hearing on 15 September 2017, namely whether the applicant had complied with the final property orders by a specified date and, if not, what orders should be made for the sale and division of proceeds of a particular property.

McClelland J dismissed both the wife's application for an adjournment and her application for an extension of time. The court noted that the wife had not yet filed the required Application in a Case and supporting affidavit. The reasoning for dismissing the applications was not explicitly detailed in the provided text, but the outcome indicates a lack of sufficient grounds or compliance with procedural requirements for such applications. The court directed that the matter would proceed to a hearing on 15 September 2017 to consider the compliance with the final property orders and, if necessary, to make orders for the sale and division of the proceeds of the L property. The costs of the hearing were reserved.

Orders

Orders of the court

THE COURT ORDERS THAT:

The wife’s application for an adjournment is dismissed.

The wife’s application for an extension of time to file an Application in a Case and supporting affidavit for variation of the final orders made 16 March 2017 pursuant to the Orders made 28 July 2017 is dismissed.

The matter remains listed for hearing at 10.00am on 15 September 2017 to consider the following issues only:

(a) Whether, as at close of business 16 June 2017, the Applicant had done all that was necessary to comply with the final property Orders made 16 March 2017; and

(b) In the event that the Court finds that the above did not occur, what orders should be made to effect the sale of the L property and the division of the proceeds of sale of that property pursuant to Order 17 of the final property Orders made 16 March 2017.

I DIRECT that within 7 days of the date of these orders, each party serve upon the other and provide to my Chambers a minute of orders sought in relation to the sale of the L property and the division of proceeds of sale of that property.

The parties’ costs of today are reserved.

AND THE COURT NOTES THAT:

A. The wife has not to date filed an Application in a Case and supporting affidavit pursuant to the Orders made 28 July 2017.

B. The husband’s counsel made submissions today as to the issues to be heard on 15 September 2017.

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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