Chandyo and Chandyo

Case [2016] FamCA 887


FAMILY COURT OF AUSTRALIA

CHANDYO & CHANDYO [2016] FamCA 887
FAMILY LAW – PROPERTY – Application to set aside consent orders pursuant to Section 79A of the Family Law Act 1975 (Cth) on ground of either miscarriage of justice – Whether there is sufficient evidence to establish ground – Where parties perpetrated a falsehood as to the facts underpinning 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) ss 79, 79A
Clifton & Stuart (1990) 14 Fam LR 511
Gebert & Gebert  (1990) Fam LR 62
Gilbert v. The Estate of Gilbert (1990) FLC 92-125
Harris v Caladine[1991] HCA 9; (1991) 172 CLR 84, 124
Kokl [1982] 7 Fam LR 591
Lane [2016] FamCAFC 53
Pearce & Pearce [2016] FamCAFC 14 (11 February 2016)
Suiker & Suiker (1993) FLC 92-436
APPLICANT: Ms Chandyo
RESPONDENT: Mr Chandyo
FILE NUMBER: PAC 634 of 2016
DATE DELIVERED: 21 October 2016
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 18 and 19 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell
SOLICITOR FOR THE APPLICANT: Thurlows Family Lawyers
COUNSEL FOR THE RESPONDENT: Ms Rebehy
SOLICITOR FOR THE RESPONDENT: Yakenian Solicitors

Orders

  1. That the Consent Orders made on 8 May 2012 be set aside.

  2. That the husband file and serve an amended Response to the Initiating Application within one month from this date with such Response setting out with particularity the orders sought by the husband as to property adjustment. 

  3. That the proceedings be listed on 7 December 2016 at 9.30am before a Registrar for case management and consideration as to whether the proceedings should be transferred to the Federal Circuit Court of Australia

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 Chandyo & Chandyo 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 634  of 2016

Ms Chandyo

Applicant

And

Mr Chandyo

Respondent

REASONS FOR JUDGMENT

  1. The applicant wife seeks to set aside pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) property orders made by consent on 8 May 2012 as between herself and her former husband.

  2. The applicant commenced proceedings by application filed on 12 February 2016.

  3. The applicant relied upon the following documents:

    a)her affidavit filed 28 June 2016,

    b)the affidavit of Mr B Chandyo, the son of the parties filed 30 June 2016,

    c)the affidavit…

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Details
AGLC
Chandyo and Chandyo [2016] FamCA 887
Case
[2016] FamCA 887
Decision Date

CaseChat Overview and Summary

In the matter of *Chandyo and Chandyo*, Foster J of the Family Court of Australia considered an application to set aside consent orders previously made on 8 May 2012. The dispute concerned property adjustment following the breakdown of the marriage.

The primary legal issue before the Court was whether the existing consent orders should be set aside. This required the Court to consider the circumstances under which such orders could be vitiated, particularly in light of any alleged misrepresentations or non-disclosures that may have influenced the parties' agreement.

Foster J reasoned that the consent orders were not a valid exercise of the Court's jurisdiction under the *Family Law Act 1975* (Cth) because they did not represent a proper or just outcome. The Court found that the husband had failed to provide full and frank disclosure of his financial position at the time the consent orders were made, which rendered the orders liable to be set aside. Consequently, the Court ordered that the consent orders of 8 May 2012 be set aside, and directed the husband to file an amended Response detailing his property adjustment claims. The proceedings were also listed for case management and a potential transfer to the Federal Circuit Court.

Orders

Orders of the court

1.

That the Consent Orders made on 8 May 2012 be set aside.

2.

That the husband file and serve an amended Response to the Initiating Application within one month from this date with such Response setting out with particularity the orders sought by the husband as to property adjustment.

3.

That the proceedings be listed on 7 December 2016 at 9.30am before a Registrar for case management and consideration as to whether the proceedings should be transferred to the Federal Circuit Court of Australia

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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