By Sharla Stevens
The recent case of Bebbington & Bebbington [2017] shows that the Court won’t always strictly enforce the court orders, where matters of common sense may prevail.
In this case the court orders provided for the husband to transfer his share in a property to the wife and that she refinance the mortgage and pay him $33,000. In the event the wife couldn’t refinance the mortgage, the orders provided for the property to be sold. The wife was ready to proceed but couldn’t settle until 2 days after the time limit set in the court orders. The husband refused to proceed with settlement 2 days late and instead invoked the clauses for the property to be sold.
The wife made an application to court for enforcement, wherein the Judge made orders that provided the wife with a further 28 days for settlement. That order was carried out by the parties and the husband transferred his interest in the property to the wife and he received his settlement money. The husband then appealed the court order and argued that the court had ‘varied the substance’ of the orders.
The appeal judge did not agree with the husband and dismissed his appeal. The appeal judge found that the court has now power to vary the substance of the orders but it does have the power to make machinery orders to give effect to the orders and said that the order “extending the time for the transfer to be effected did not alter the right of the husband to seek the sale of the property if the wife was unable to refinance the mortgage” and, therefore, “the orders…were consequential or machinery in nature”.
This case illustrates that the Court will try to take a common sense approach to enforcement matters, in order to uphold the substance of the orders.
For the full case go to: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/31.html?context=1;query=bebbington
If you need assistance with a family law matter please contact Cristina Huesch, or one of our solicitors Sharla Stevens or Angela Li, at Alliance Family Law on (02) 6223 2400.
