Chandyo and Chandyo - [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

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

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

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

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 Chandyo and Chandyo

Details

AGLC: Chandyo and Chandyo [2016] FamCA 887
Case: [2016] FamCA 887
Decision Date: 21 October 2016

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

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

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.

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

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

Full text does not contain this section.