Callis and Callis

[2019] FamCA 750

FAMILY COURT OF AUSTRALIA

CALLIS & CALLIS [2019] FamCA 750

FAMILY LAW – PROPERTY – Application to set aside or vary property Consent Orders pursuant to s 79A on the ground of miscarriage of justice – Where there is sufficient evidence to establish ground – Where father did not disclose his significant superannuation pension in the payment phase in the Application for Consent Orders – Where miscarriage of justice established – Where discussion of applicable principles – Where appropriate to exercise discretion to set aside Consent Orders.

Family Law Act 1975 (Cth) s 79A

Carron & Laninga [2019] FamCAFC 115
Clifton & Stuart (1990) 14 Fam LR 511
Gebert & Gebert  (1990) Fam LR 62
Gilbert v. The Estate of Gilbert (1990) FLC 92-125
In the marriage of Kokl [1981] FamCA 60; (1981) 7 Fam LR 591
Lane & Lane [2016] FamCAFC 53
Pearce & Pearce [2016] FamCAFC 14
Perrin & Perrin [2018] FamCAFC 122
Suiker & Suiker (1993) FLC 92-436
Waterman & Waterman [2017] FamCAFC 23

APPLICANT: Ms Callis

RESPONDENT: Mr Callis

FILE NUMBER: PAC 4029 of 2010

DATE DELIVERED: 17 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Druitt

SOLICITOR FOR THE APPLICANT: Benetatos White Solicitors

COUNSEL FOR THE RESPONDENT: Ms Eldershaw

SOLICITOR FOR THE RESPONDENT: Craddock Murray Neuman

Orders

1. The Consent Orders made on 21 September 2010 be set aside.

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 Callis &Callis 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 variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4029 of 2010

Ms Callis

Applicant

And

Mr Callis

Respondent

REASONS FOR JUDGMENT

1. The applicant wife in these proceedings seeks to set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) property orders made by consent on 21 September 2010 as between herself and her former husband.

2. These proceedings were commenced by the applicant wife in her Initiating Application filed 12 October 2018. In her Amended Initiating Application subsequently filed on 1 February 2019 the wife seeks that the subject orders be varied and property adjustment as between her and the husband including a superannuation splitting order and various other orders as to implementation and enforcement be made.

3. The husband in his Amended Response filed 14 December 2018 to the wife’s application seeks orders that the wife’s application be dismissed and that she pay his costs.

4. On 5 April 2019 the Court determined that the section 79A…