Badawi and Badawi

[2016] FamCA 804

FAMILY COURT OF AUSTRALIA

BADAWI & BADAWI [2016] FamCA 804

FAMILY LAW – PROPERTY SETTLEMENT – Application by the husband under section 79A(1)(a) to set aside final consent orders – Whether the husband was under duress signing the consent orders – Whether there was a suppression of evidence – Whether the then Federal Magistrate Court Rules 2001 (Cth) were not complied with – Whether the parties’ solicitors failed in their duties – Whether the representation of the husband was perverse or amounted to no representation at all per In the marriage of Clifton and Stuart (1991) FLC 92-194 – Whether the husband was not competent to conduct litigation without a case guardian due to his mental health – Where the Court finds that no ground has been established under section 79A(1)(a) – Where the Court would not have found a miscarriage of justice had occurred – Where the Court would not have exercised its discretion to set aside the consent orders – Application dismissed.

Evidence Act 1995 (Cth) s 140(2)(c)

Family Law Act 1975 (Cth) ss 79A(1)(a), 79, 114(2)(b)
Federal Magistrate Court Rules 2001 (Cth) rr 4.03, 11.08, 24.02

Birkbeck & Birkbeck (1970) 16 FLR 78
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Gebert & Gebert (1990) FLC 92-137
Harris v Caladine (1991) 172 CLR 84
Holland & Holland (1982) FLC 91-243
Howard v Commissioner of Taxation [2014] HCA 21
In the marriage of Clifton and Stuart (1991) FLC 92-194
In the marriage of Florie (1988) FLC 91-913
In the marriage of Rohde (1984) FLC 91-592
In the marriage of Simpson and Hamlin (1984) FLC 91-576
Lane & Lane [2016] FamCAFC 53
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154
Maguire v Makaronis (1997) 188 CLR 449
Redman & Redman [2013] FamCAFC 183
Saintclaire & Saintclaire (2015) FLC 93-684
Saleeby & Moon [2015] FamCA 43
SH and DH (2003) FLC 93-164
University of Wollongong v Metwally(No. 2) (1985) 60 ALR 68

APPLICANT: Mr Badawi

RESPONDENT: Ms Badawi

FILE NUMBER: SYC 3146 of 2008

DATE DELIVERED: 21 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 5 - 6 May 2016; 3 June 2016 and by way of written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Reid

SOLICITOR FOR THE APPLICANT: M Duncan & Associates

COUNSEL FOR THE RESPONDENT: Mr Paterson

SOLICITOR FOR THE RESPONDENT: Jack Rigg Solicitors

Orders

1. The husband’s Initiating Application filed 24 November 2014 is dismissed.

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 Badawi & Badawi 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…