Genesalio & Genesalio (No 6) [2025] FedCFamC1F 450 (3 July 2025)

1. For the purpose of the Default Sales provided for by orders 9 and 10 of the Final Orders dated 30 August 2024, as supplemented by the Orders made 16 June 2025, the following further Orders shall apply:

(a) The Husband and the Brother and their agents be restrained by injunction from interfering with the sale of the Properties including but not limited to being within 100 metres of any of the Properties at the time of the auction or inspection of that Property, and one hour before and after such time, provided that written notice is given to them at least twenty-four (24) hours prior to such auction or inspection; and

(b) The Husband and the Brother comply with any reasonable request of the selling agent appointed to conduct the sale of any of the Properties within twenty-four (24) hours of receipt of such request or such other time as required by the selling agent.

1. Paragraphs 1 to 5 inclusive of the wife's Application in a Proceeding filed 12 June 2025 be 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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Genesalio & Genesalio has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Application in a Proceeding filed 12 June 2025, the applicant wife, Ms Genesalio, sought a raft of orders to give effect to the final property orders made by the Court on 30 August 2024 ("the Final Orders").
2. The orders sought in that application included orders for the appointment of a selling agent for specified properties, the appointment of a conveyancer in respect of the sale of those properties and injunctions restraining the first and second respondents, being the husband, Mr Genesalio, and his brother, Mr M Genesalio, from interfering with the sale of the properties.
3. That application was heard before me on 16 June 2025. During that hearing, I gave indications as to my intention to make orders with respect to the appointment of the selling agents and a conveyancer to effect the sale of the properties pursuant to the Final Orders. The matter was then stood down to enable the parties to consider those matters. Ultimately, I made orders by consent with respect to the appointment of the selling agents and conveyancer.
4. The first and second respondents each confirmed that they opposed the injunctive relief sought by the wife. The solicitor for the second respondent sought the opportunity to provide written submissions with respect to that issue. That application was not opposed by the wife and accordingly, I made orders as follows:-
   1. By 4.00pm on 23 June 2025 the Respondents file and serve written submissions, not exceeding four (4) pages in length, in relation to their opposition to the injunctive relief sought by the Applicant in paragraph 5 of the Applicant's Application in a Proceeding filed 12 June 2025 only, together with any further affidavit material to be relied on in support.
   2. By 4.00pm on 25 June 2025 the Applicant file and serve any written submissions, not exceeding four (4) pages in length, in reply to the Respondents' submissions filed pursuant to paragraph 6 above, together with any further affidavit material to be relied on in support (if any).
5. Pursuant to those orders the first respondent filed written submissions opposing the wife's application for injunctive relief on 23 June 2025. The second respondent's submissions were filed on 24 June 2025. The applicant filed submissions in support of the injunctive relief on 25 June 2025. No issue was taken by the applicant in respect of the late filing of submissions by the second respondent.
6. These are my reasons for judgment with respect to that application.

1. The husband and wife married in 1994 and separated under the one roof in August 2017. Physical separation occurred in November 2018 upon the making of orders for the wife to have sole use and occupation of the former matrimonial home in Suburb C.
2. The husband and wife divorced in April 2020. There are three adult children of the marriage.
3. The wife commenced proceedings in this Court in 2018 seeking final property orders.
4. The matter has had a long and difficult history before the Court. Much of that history is set out in the earlier judgment of Genesalio & Genesalio (No 2) [2023] FedCFamC1F 160. I do not propose to repeat that history here.
5. The matter was listed for final hearing before me in August 2024. Each of the parties was represented by senior and junior counsel at that hearing. The hearing proceeded over nine days and was resolved by consent, with Final Orders having been made by me on 30 August 2024.
6. The Final Orders made provision for a payment to the wife of $4 million, that payment to be effected on or before 30 April 2025; the respondents were jointly and severally liable for the payment.
7. The Final Orders contained default provisions in the event that the payment to the wife was not made by the due date. Those default provisions include orders for the sale of identified properties and are set out at paragraphs 9 to 12 of the Final Orders. It is those provisions that the wife now seeks to enliven, given the failure of the respondents to meet their payment obligations pursuant to Order 1 of the Final Orders.
8. On 16 June 2025 the parties consented to orders nominating selling agents for the properties to be sold. Those orders also made provision for the execution of the necessary sale documents and for the payment of costs associated with the appointment of the selling agents.
9. The remaining issue is whether the orders sought by the wife for the restraint of the first and second respondents from attending at the properties to be sold during inspections and auction (and in the periods immediately before or after those occasions) ought be made. The orders sought are set out at paragraph 5 of her Application in a Proceeding, as follows:-
   1. For the purpose of the Default Sales provided for by orders 9 and 10 of the Final Orders, as supplemented by these orders, the following further orders shall apply:

(a) The Husband and the Brother and their agents be restrained by injunction from interfering with the sale of the Properties including but not limited to being within 100 metres of the any of the Properties at the time of the auction or inspection of that Property, and one hour before and after such time, provided that written notice is given to them at least twenty-four (24) hours prior to such auction or inspection; and

(b) The Husband and the Brother comply with any reasonable request of the selling agent appointed to conduct the sale of any of the Properties within twenty-four (24) hours of receipt of such request or such other time as required by the selling agent.

1. Both the first and second respondent oppose paragraph 5(a) of that application. There is no objection to an order being made in the terms of paragraph 5(b) of the wife's application.

1. The applicant wife relied upon the following documents:-
   • Application in a Proceeding filed 12 June 2025;
   • Affidavit of Mr CC filed 12 June 2025; and
   • Applicant wife's submissions - injunctive relief filed 25 June 2025.
2. The first respondent relied upon the written submissions filed 23 June 2025.
3. The second respondent relied upon the written submissions filed 24 June 2025.

1. The wife seeks injunctive relief as against the first and second respondent. She relies upon the Court's powers pursuant to s 114 and s 90AF of the Family Law Act 1975 (Cth) ("the Act") in support of that application.
2. Section 105 of the Act provides that all decrees made under the Act may be enforced by any court having jurisdiction under the Act. Whether to enforce or refuse to enforce an order is discretionary (per Ramsey & Ramsey [1982] FamCA 42; (1983) FLC 91-301).
3. Section 109A(1) of the Act empowers the Court to make rules of the Court in respect of enforcement. Section 109A(2)(a) provides that the Court may make rules in relation to specific matters including requiring a person to do, or abstain from doing, any act other than those specifically referred to in subsections (i)-(v).
4. Rule 11.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the general enforcement powers of the Court, which include the power to make injunctive orders in aid of the enforcement of an obligation (r 11.07(e)).
5. An application to enforce a Court order is not an opportunity to revisit the substance of that order; the determination of an enforcement application relies upon only the facts and circumstances that have arisen since the date of the order sought to be enforced.
6. Section 114 of the Family Law Act 1975 (Cth) (the Act) provides as follows:-

(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:

(a) an injunction for the personal protection of a party to the marriage;

(b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;

(c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;

(d) an injunction for the protection of the marital relationship;

(e) an injunction in relation to the property of a party to the marriage; or

(f) an injunction relating to the use or occupancy of the matrimonial home.

(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.

(4) If a party to a marriage is a bankrupt, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt's creditors.

(5) Subsection (4) does not limit subsection (3).

(6) If a party to a marriage is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the marriage, by interlocutory order, grant an injunction under subsection (3) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.

(7) Subsection (6) does not limit subsection (3).

1. The power to make an order or injunction under s 114 binding a third party is to be found at s 90AF of the Act which provides as follows:-

(1) In proceedings under section 114, the court may:

(a) make an order restraining a person from repossessing property of a party to a marriage; or

(b) grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.

(2) In proceedings under section 114, the court may make any other order, or grant any other injunction that:

(a) directs a third party to do a thing in relation to the property of a party to the marriage; or

(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.

(3) The court may only make an order or grant an injunction under subsection (1) or (2) if:

(a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

(b) if the order or injunction concerns a debt of a party to the marriage - it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

(c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

(d) for an injunction or order under subsection 114(1) - the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

(e) for an injunction under subsection 114(3) - the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

(f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

(a) the taxation effect (if any) of the order or injunction on the parties to the marriage;

(b) the taxation effect (if any) of the order or injunction on the third party;

(c) the social security effect (if any) of the order or injunction on the parties to the marriage;

(d) the third party's administrative costs in relation to the order or injunction;

(e) if the order or injunction concerns a debt of a party to the marriage - the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;

Note: See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.

Example: The capacity of a party to the marriage to repay the debt would be affected by that party's ability to repay the debt without undue hardship.

(f) the economic, legal or other capacity of the third party to comply with the order or injunction;

Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party's legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters - those matters;

Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

(h) any other matter that the court considers relevant.

1. The exercise of power under s 114 and s 90AF of the Act is discretionary.
2. Section 114(3) of the Act empowers the Court to grant an injunction by interlocutory order or otherwise, including an injunction in aid of the enforcement of a decree, in any case in which it appears to the Court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the Court considers appropriate. It is that power which the wife seeks to invoke in her current application.
3. The Court may only make an order or grant an injunction as sought by the wife in aid of enforcement of an order if it is proper to do so. Further, the Court must be satisfied that it is just or convenient to grant the injunction.
4. Other matters that ought be taken into account in determining the application for injunctive relief include:-
   • Whether the proposed injunction will affect the position and rights of the first and second respondent;
   • The balance of hardship and the balance of convenience as between the parties;
   • Whether the injunction is necessary to prevent the abuse or frustration of the processes of the Court; and
   • Whether there is any intention to dispose of assets. (see Waugh & Waugh [2000] FamCA 1183; (2000) FLC 93-052; Sieling & Sieling [1979] FamCA 23; (1979) FLC 90-627; Mullen & De Bry [2006] FamCA 1380; (2006) FLC 93-293)

1. It was submitted on behalf of the wife that her claim to property under the Final Orders may be prejudiced unless the injunction is granted. She submitted that the balance of convenience favours the granting of the injunctive order.
2. In support of that submission, the wife relied upon the conduct of the first and second respondents in failing to comply with the Final Orders, particularly the payment due to her pursuant to Order 1, which was due to be paid by 30 April 2025.
3. Further, it was submitted on behalf of the wife that neither the husband nor the second respondent had complied with the default provisions under the Final Orders. It was submitted that they had failed to do all such acts and things and sign all such documents as required to cause the specified properties to be sold in accordance with paragraph 9(a) of the Final Orders. In addition, it was submitted that the second respondent had failed to nominate three selling agents in respect of the property at 3 G Street as required pursuant to paragraph 10(a)(i) of the Final Orders. Further, the wife contended that the second respondent had failed to appoint a selling agent with respect to the properties at 2 G Street and F Street, as required pursuant to paragraph 10(a)(ii) of the Final Orders.
4. In his affidavit filed 12 June 2025, the wife's solicitor deposed that he forwarded letters to the first and second respondents on 17 April 2025, 9 May 2025 and 14 May 2025 seeking confirmation of appointment of selling agents for the subject properties. A further letter was sent by the wife's lawyer on 22 May 2025 to the second respondent regarding the appointment of selling agents for the subject properties. Those issues were not resolved.
5. Finally, on 26 May 2025 the wife's lawyer sent a letter to the first and second respondent giving notice that in the event of there being no agreement as to the appointment of selling agents, an application would be filed on behalf of the wife seeking enforcement of the Final Orders. The wife caused that application to be filed on 12 June 2025.
6. In light of that history, it was submitted on behalf of the wife that the respondents had obstructed the finalisation of the matter, depriving her of her entitlements pursuant to the Final Orders and further, that such conduct is likely to continue. It is on that basis that the injunctive relief is sought.
7. As to the terms of the proposed injunction, it was submitted on behalf of the wife that the injunction sought by her is limited in nature, merely restraining the first and second respondents from being within 100 metres of the subject property for a period of one hour before and after any auction or inspection, subject to each having at least 24 hours' written notice of such events. It was submitted that orders in those terms go no further than is necessary to ensure that the default sales are not further delayed or frustrated and will protect the wife's entitlement to the payment pursuant to the Final Orders. It was also submitted that there is no evidence before the Court of any hardship to either the first or second respondent occasioned by the injunctive relief sought by the wife.
8. Simply put, the wife's position is that the injunction sought by her is necessary to ensure the orderly completion of the default sales pursuant to paragraph 9 of the Final Orders. Those orders are necessary to enable her to receive the benefit of the payment to which she is entitled under the Final Orders. It was submitted on her behalf that the injunction restraining the presence of the first and second respondents at the subject properties during auction and inspections goes no further than is necessary to achieve that end.

1. In the written submissions filed on his behalf on 23 June 2025, the first respondent conceded that he had not made the payment to the wife as required under Order 1 of the Final Orders.
2. The first respondent contended that paragraph 10 of the Final Orders relating to the appointment of selling agents does not apply to him. In circumstances where Order 9 of the Final Orders provides that "within 21 days the husband and the second to seventh respondents (as applicable) do all such acts and things and sign all such documents to cause the following properties to be sold (default sales) within 60 days ..." (emphasis added), I do not accept that submission. It is plain on any reading of that paragraph that the obligation to affect the default sales is one borne by the husband and the other respondents. Whilst the obligation to nominate selling agents was one carried by the second respondent pursuant to paragraph 10(a) of the Final Orders, there can be no debate as to the obligation of all of the respondents to do all such acts and things and sign all documents as required to effect the default sales.
3. The husband maintains that he has not interfered with the default sales and as such, submits that there are no grounds or evidence that would support the making of the injunction.

1. The second respondent submits that the proposed injunction is not necessary and that there is no justifiable reason for the restriction sought. Further, it was submitted that there is no evidence to suggest that he or any other person has interfered with the sale process.
2. The second respondent also submits that he is not currently in breach of the Orders, as the Final Orders do not stipulate a date for nomination of selling agents with respect to the properties.
3. Further, it was submitted on his behalf that the Final Orders were "entered irregularly by the Court" and as such cannot stand.
4. It was also submitted by the second respondent that there is no evidence before the Court that the second respondent is in breach of the Orders. In circumstances where the second respondent is jointly and severally liable for the payment to the wife which was to have been effected by 30 April 2025 pursuant to paragraph 1 of the Final Orders, I do not accept that submission.
5. The second respondent also submitted that the injunction sought by the wife is not reasonable, and further, that there is no risk that any assets will be dissipated which would otherwise justify the restrictions contained within the injunction sought. The second respondent contends that he has valuables and other assets stored at the subject properties and that it is a drastic remedy to deny him the opportunity to be present whilst the properties are open for inspection. The second respondent also maintains that the properties to be sold have been subject to repeated break-ins that have been reported to police. I do not accept those submissions in circumstances where he adduced no evidence to support his contentions as to the presence or otherwise of valuables owned by the second respondent and/or third parties at the subject properties.
6. The second respondent maintains that the wife has not demonstrated that there is a "substantial reason" to justify the making of the injunction. He maintains that to shut a person out of their property for whatever length of time is a drastic remedy and only one to be exercised on evidence and for justifiable reason. He also contends that it is not just and convenient to make orders in the terms of the wife's application.

1. On any view, the first and second respondent are in breach of their obligations to effect payment to the wife of her entitlements pursuant to Order 1 of the Final Orders. That much, at least, appears to be common ground between the parties.
2. It is also uncontroversial that there are default provisions in the Final Orders that require the husband and the second to seventh respondents to do all such acts and things and sign all such documents within 21 days of the default of the payment, that is by 21 May 2025, to cause the identified properties to be sold.
3. At the hearing on 16 June 2025, it was also common ground that neither the first nor second respondent had taken steps to cause the sale of the specified properties pursuant to the Final Orders.
4. Order 10(a)(i) of the Final Orders required the second respondent, within seven days of default, that is by 7 May 2025, to propose three selling agents, from which the wife was to choose one, in respect of the sale of the property at 3 G Street. There is no evidence of such proposal having been made by the second respondent in compliance with that Order.
5. Pursuant to Order 10(a)(ii) of the Final Orders, the second respondent was to appoint selling agents in respect of the other identified properties. Again, this did not occur.
6. Having regard to those matters, I am well satisfied that the first and second respondents have not discharged their obligations pursuant to the Final Orders and as such, have frustrated the completion of the Final Orders.
7. The second respondent seeks to agitate some contention that the Final Orders have been made "irregularly" and that they do not reflect the agreement or intention of the parties. I do not accept that submission in circumstances where the Final Orders were made by consent almost 10 months ago and there had been no challenge to those Orders. It is only after the fact, and at a time when the wife seeks to enforce her entitlements under those Orders, that this issue is raised.
8. I am satisfied, having regard to the evidence of the wife's solicitor and the concessions properly made by the first and second respondents, that they have not fulfilled their obligations pursuant to the Final Orders. It is against that backdrop that the wife seeks to enforce her rights under those Orders to secure the payment to which she is entitled.
9. The Final Orders make provision for default sales. The wife's application seeks orders for the appointment of selling agents and a conveyancer to enable those sales to proceed; it was only at the hearing of that application that orderly arrangements were able to be agreed for such appointments to occur.
10. Having regard to that history, including the failure of the first and second respondent to meet their obligations under the orders, and the failure of the second respondent to respond in a timely fashion to requests that he nominate selling agents (as provided for under the Final Orders), I am satisfied that it is necessary and appropriate that orders be made to ensure that there is no further disruption to the default sale process. I am satisfied that such orders are just and convenient in the circumstances of this case.
11. The injunctions sought by the wife are limited to short periods prior to and following inspections and auction. They are orders designed to ensure that there is no disruption to those events, which are necessary to ensure that the ordered sales proceed. Ordinarily, property vendors are not present during property inspections conducted by selling agents. There is no admissible evidence before the Court that would indicate there should be any departure from that practice in this case. The second respondent complains that valuables located at the subject properties may be at risk during such inspections. However, he has adduced no evidence as to those matters. In any event, I am satisfied that it is open to him to remove those chattels prior to the inspections occurring, should he wish to do so.
12. In circumstances where there is little controversy that the first and second respondents have not complied with their obligations under the Final Orders, I am satisfied that orders ought be made in the terms of the wife's application. I note that paragraph 5(b) of the wife's application is unopposed. Accordingly, I will also make an order in those terms.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.