Freitag & Pymer - [2022] FedCFamC2F 424

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Freitag & Pymer [2022] FedCFamC2F 424

File number(s): ADC 4304 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 8 April 2022

Catchwords:

1 FAMILY LAW – Property – Application for Final Orders to be set aside pursuant to s 79A (1)(a) of the Family Law Act1975 (Cth) – Whether there was implied consent to set aside the Final Orders pursuant to s 79A (1A) – Where the respondent made an oral application for summary dismissal and an alternative application for bifurcation of the s 79A proceedings – Application for summary dismissal refused – Application for bifurcation granted.

Legislation:
Family Law Act 1975 (Cth) ss 79, 79A (1)(a), 79A (1A)

Family Law (Fees) Regulation 2012 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.14, 10.09, 1.31

Cases cited:
Gitane & Velacruz (2007) FLC 93-309; [2007] FamCA 183

Lancer & Lancer [2008] FamCAFC 112

Oastler & Oastler (1993) FLC 92-390; [1989] FamCA 100

Riley & Pateman [2000] FamCA 1296 (unreported)

Waterman & Waterman [2017] FamCAFC 23

Division: Division 2 Family Law

Number of paragraphs: 48

Date of hearing: 22 March 2022

Place: Adelaide

Counsel for the Applicant: Mr McQuade

Solicitor for the Applicant: The Family Law Project

Counsel for the Respondent: Ms Horvat

Solicitor for the Respondent: Andersons Solicitors
ORDERS

ADC 4304 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FREITAG

Applicant

AND:
MS PYMER

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:
1.The wife's oral application for summary dismissal of the husband's Initiating Application filed 3 September 2021 (“the husband’s application”) made on 22 March 2022 is refused.
2.The wife's application to bifurcate the hearing of the husband's application is granted.
3.The matter be listed for a two day trial on 17 and 18 October 2022 at 10.00am on the issues of:
(a)whether the husband has a ground pursuant to section 79A (1)(a) of the Family Law Act1975 (Cth) to set aside the final orders made 6 April 2017 (“the final orders”) and if so, whether there has been a miscarriage of justice; and
(b)whether there was otherwise implied consent to set aside the final orders pursuant to section 79A (1A).

4.On or before 28 days prior to trial, the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012 (Cth).
5.No later than 28 days prior to the trial date, the applicant file and serve the following:
(a)any Amended Initiating Application setting out, with particularity, the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and

6.No later than 14 days prior to the trial date, the respondent file and serve the following:
(a)any Amended Response setting out, with particularity, the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits…

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 Freitag & Pymer

Details

AGLC: Freitag & Pymer [2022] FedCFamC2F 424
Case: [2022] FedCFamC2F 424
Decision Date

CaseChat Overview and Summary

In the case of Freitag & Pymer, the husband sought to set aside final property orders made in 2017 by applying under section 79A of the Family Law Act 1975 (Cth). The wife sought summary dismissal of the husband's application or, in the alternative, bifurcation of the section 79A proceeding. The court had to decide whether to summarily dismiss the husband's application, and whether to bifurcate the hearing of the application. The court held that the wife's oral application for summary dismissal was refused as it was not made in accordance with the rules. However, the wife's application to bifurcate the hearing of the husband's application was granted. The court found that bifurcation was appropriate in this case as the issues under section 79A and the issues of varying or setting aside the orders were distinct, and the husband had not established a ground to set aside the orders or that there was implied consent to set them aside. The court also noted that the husband's precarious financial position and the modest funds received by the wife as a result of the sale of the property were relevant considerations in favour of bifurcation.

The court ordered that the wife's oral application for summary dismissal was refused, and her application to bifurcate the hearing of the husband's application was granted. The matter was listed for a two-day trial on the issues of whether the husband had a ground to set aside the final orders and if so, whether there had been a miscarriage of justice, and whether there was otherwise implied consent to set aside the final orders. The court also made orders in relation to filing and serving of documents, costs, and other procedural matters.

Orders