FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – wife seeking orders under s 79A to set aside consent orders – husband seeking orders for the summary dismissal of the wife’s s 79A application – husband’s summary dismissal application dismissed.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR DECKER
Applicant
AND:
MS DECKER
Respondent
order made by:
WILSON J
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.The husband’s summary dismissal application of the wife’s s 79A application is dismissed.
2.On or before 4:00pm on 25 August 2022 any application for costs must be filed and served with supporting evidence.
3.On or before 4:00pm on 8 September 2022 any affidavit material in opposition to the material filed pursuant to paragraph 2 hereof must be filed and served.
4.On or before 4:00pm on 22 September 2022 the parties must file and serve written submissions on costs.
5.The…
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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Details
AGLC
Decker & Decker [2022] FedCFamC1F 563
Case
[2022] FedCFamC1F 563
Decision Date
CaseChat Overview and Summary
In Decker & Decker, the Federal Circuit and Family Court of Australia dismissed the husband's application for summary dismissal of the wife's application to set aside consent orders under s 79A of the Family Law Act 1975 (Cth). The husband's application was grounded in s 45A of the Family Law Act, which permits the court to make a decree for one party if the other party has no reasonable prospect of successfully defending the proceedings. The wife contended that the husband's failure to disclose key documents in the lead up to the settlement of the property settlement proceeding on 21 November 2019 amounted to a miscarriage of justice. The court found that there were significant factual disputes that must be determined at trial and that the wife's application for relief under s 79A(1)(a) was wholly arguable. The court took the view that the wife's application was arguable and that it would be antithetical to the interests of justice for her case to be summarily terminated. The court dismissed the husband's summary dismissal application and directed that any application for costs must be filed and served with supporting evidence by 4:00pm on 25 August 2022. Any affidavit material in opposition must be filed and served by 4:00pm on 8 September 2022. Written submissions are to be filed and served by 4:00pm on 22 September 2022. The question of costs will be decided on the papers thereafter.