Catchwords: FAMILY LAW – Undefended hearing – orders made setting matter down for undefended hearing as against the husband – husband appeared at undefended hearing – husband made an application to adjourn the undefended hearing –husband did not file court documents as directed – husband asserts mental health difficulties preventing him from participating in proceedings – wife opposed application – Court finds that the husband’s application is not made out – matter proceeded on an undefended basis without submissions or evidence from the husband.
FAMILY LAW – Property – application pursuant to section 79 – Court finds it is just and equitable to make an order pursuant to section 79 – consideration of matters under section 79(4) – orders made.
The Court orders pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That Order 1 made on 10 November 2020 is discharged.
(b)That the specified percentage of all splittable payments made to the Applicant Wife as required by section 90XT(1)(b) of the Act out of the interest held by the Respondent Husband in Super Fund B is 73.92%.
(c)That whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of the Respondent Husband from his interest in Super Fund B, the Applicant Wife is entitled to be paid 73.92% of the splittable payment and there shall be a corresponding reduction in the amount the Respondent…
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.
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AGLC
AVERILL & AVERILL [2021] FCCA 1538
Case
[2021] FCCA 1538
Decision Date
CaseChat Overview and Summary
The parties to this proceeding were husband and wife. The wife sought property adjustment orders under section 79 of the *Family Law Act 1975* (Cth). The matter was set down for an undefended hearing as against the husband.
At the scheduled undefended hearing, the husband appeared and sought an adjournment, asserting mental health difficulties that he claimed prevented his participation in the proceedings. He had not filed court documents as directed. The wife opposed the adjournment application.
Morley J found that the husband had not established grounds for an adjournment. Consequently, the court proceeded with the hearing on an undefended basis, without receiving submissions or evidence from the husband. The court considered the matters relevant to a section 79 application and determined it was just and equitable to make property adjustment orders.