Aheb and Aheb - [2009] FamCA 56

FAMILY COURT OF AUSTRALIA

AHEB & AHEB

[2009] FamCA 56

FAMILY LAW – ORDERS – Application for variation of partial distribution of property orders – interim proceeding – substitute sale of property orders – Party failing to attend on interim hearing – Natural justice – Res judicata

Family Law Act 1975 (Cth)

Blair v Curran (1939) 62 CLR 464
C and C [2001] FamCA 1279
H and H [1993] FamCA 49
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Taylor v Taylor (1979) 143 CLR 1

APPLICANT:

Mr Aheb

RESPONDENT:

Ms Aheb

FILE NUMBER:

MLF

2471

2006

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

4 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CARLILE

SOLICITOR FOR THE APPLICANT:

J K LAWYER & CO

COUNSEL FOR THE RESPONDENT:

MR MORT

SOLICITOR FOR THE RESPONDENT:

JANE BALDWIN

Orders

That the application of the husband filed on 20 January 2009 and the response of the wife filed 2 February 2009 are dismissed.
That should any party desire to make any application for costs arising out of these orders, they do so by written submission including as to quantum of such costs by filing them with my Associate by email and served upon the other party by no later than 4.00pm on 23 February 2009.
That the recipient of any such application for costs may file and serve any submission in reply by 4.00pm on 27 February 2009, such submission being provided to my Associate at the email address shown above.
That any such application for costs be determined in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Aheb & Aheb is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2471 of 2006

MR AHEB

Applicant

And

MS AHEB

Respondent

REASONS FOR JUDGMENT

On 30 December 2008, I ordered that the former matrimonial home at W be sold and upon the payment of the various expenses associated with the sale, the discharging of the encumbrance and the payment of some legal costs, the balance of the net proceeds were to be paid to the wife by way of partial property settlement.
The husband did not attend that hearing. He now seeks to discharge those orders and to put in place a series of different orders because it is his desire as part of the proceedings before Murphy J which are still part-heard, to retain the former matrimonial home.
Whilst on the face of the figures, it might appear that there is more than ample equity for the husband to take a transfer of the former matrimonial home as part of his ultimate entitlement, my limited understanding of the proceedings before Murphy J would suggest that the significant dispute between the parties relates to money missing, misused or to be added back in some way.
The wife argued before me that…

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 Aheb and Aheb

Details

AGLC: Aheb and Aheb [2009] FamCA 56
Case: [2009] FamCA 56
Decision Date: 5 February 2009

CaseChat Overview and Summary

In the matter of *Aheb and Aheb*, Justice Cronin of the Federal Circuit Court of Australia considered an application by the husband and a response by the wife. The precise nature of the dispute between the parties is not detailed in the provided text, but it concerned applications filed in January and February 2009.

The court was required to determine whether to grant the applications made by the husband and the wife. The text does not explicitly state the specific legal issues or grounds upon which these applications were made.

Justice Cronin dismissed both the husband's application and the wife's response. The court then made orders regarding the process for any party wishing to seek costs arising from these dismissals, requiring written submissions to be filed and served by specific dates in February 2009, with the final determination of costs to occur in chambers.

Orders

Orders of the court

That the application of the husband filed on 20 January 2009 and the response of the wife filed 2 February 2009 are dismissed.

That should any party desire to make any application for costs arising out of these orders, they do so by written submission including as to quantum of such costs by filing them with my Associate by email and served upon the other party by no later than 4.00pm on 23 February 2009.

That the recipient of any such application for costs may file and serve any submission in reply by 4.00pm on 27 February 2009, such submission being provided to my Associate at the email address shown above.

That any such application for costs be determined in chambers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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