DUDONOVA & DURANSKY - [2015] FamCA 935

FAMILY COURT OF AUSTRALIA

DUDONOVA & DURANSKY

[2015] FamCA 935

FAMILY LAW – PROPERTY – Application to set aside or vary property consent orders pursuant to s 79A – threshold s 79A issue – principles of impracticability considered – where in the circumstances since the order was made it is impracticable for the order to be carried out – where it is appropriate that the Court exercise its discretion to appropriately vary to the orders.

Family Law Act 1975 (Cth) s 79A

Brown v Heffer [1967] HCA 40
Cawthorn v Cawthorn [1998] FamCA 37; (1998) FLC 92-805
Fairweather v Fairweather [1944] HCA 11; (1944) 69 CLR 121 at 154; [1944] ALR 190
Gilbert v. The Estate of Gilbert (1990) FLC 92-125

APPLICANT:

Ms Dudonova

RESPONDENT:

Mr Duransky

FILE NUMBER:

SYC

3238

2011

DATE DELIVERED:

30 October 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

14 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Mark Brown & Associates

COUNSEL FOR THE RESPONDENT:

Mr Gray

SOLICITOR FOR THE RESPONDENT:

Corporate and Civil Legal

Orders

That the proceedings be listed for submissions as to appropriate variation of orders on a date to be fixed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dudonova & Duransky has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 3238 of 2011

Ms Dudonova

Applicant

And

Mr Duransky

Respondent

REASONS FOR JUDGMENT

The present matter for determination arises from an Initiating Application filed by the wife on 3 July 2015 and subsequently amended by way of her Amended Initiating Application filed on 5 August 2015.
On 27 February 2014 orders were made by consent as to property settlement as between the wife and the husband. Those orders relevantly provided in summary:
a)That within 60 days from the date of orders the husband was to do all things necessary to transfer to the wife his interest in the former matrimonial home at Suburb A and simultaneously with that transfer the wife was to pay to him the sum of $385,000,
b)That in the event of the wife failing to make the payment to the husband within 60 days the wife was to do all things necessary to transfer to the husband her interest in the former matrimonial home and simultaneously with that transfer the husband to pay to the wife the sum of $385,000,
c)In default of the husband making the payment to the wife the property was to be sold by public auction and the net proceeds of sale were to be divided equally between the husband and the wife.
In her Amended Initiating Application the wife in summary seeks the following orders:
a)That orders made on 27 February 2014 be set aside or varied pursuant to section 79A(1)(b) or (c) of the Family Law Act 1975 (Cth) (“the Act”),

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: DUDONOVA & DURANSKY [2015] FamCA 935
Case: [2015] FamCA 935
Decision Date: 30 October 2015

CaseChat Overview and Summary

The parties in this matter were Dudonova and Duransky. The nature of the dispute and the specific orders sought are not detailed in the provided text. The decision was made by Foster J.

The central legal issue before the court was the appropriate variation of existing orders. The precise nature of these orders and the grounds for seeking their variation were not specified in the provided excerpt.

Foster J determined that the proceedings should be listed for further submissions regarding the variation of orders. This indicates that the court acknowledged the need for further argument or evidence before making a final determination on the requested variations.

Consequently, the court ordered that the proceedings be listed for submissions as to the appropriate variation of orders on a date to be fixed.

Orders

Orders of the court

That the proceedings be listed for submissions as to appropriate variation of orders on a date to be fixed.

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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