Fumic & Fumic - [2022] FedCFamC2F 654

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fumic & Fumic [2022] FedCFamC2F 654

File number(s): NCC 240 of 2019

Judgment of: JUDGE KEARNEY

Date of judgment: 23 May 2022

Catchwords: FAMILY LAW – enforcement of financial orders – failure to comply with obligations in final property adjustment orders - varying those orders pursuant to s 79A - undefended hearing – indemnity costs order appropriate – just and equitable

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)

Cases cited:
Black & Kellner [1992] FamCA 2

Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536

Cross & Beaumont [2008] FamCAFC 68

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania v Fish) [2005] FamCA 158

Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157

Munday v Bowman (1997) FLC 92-784

Nada and Nettle (Costs) [2014] FamCAFC 207

Division: Division 2 Family Law

Number of paragraphs: 71

Date of hearing: 18 May 2022

Place: Newcastle

Counsel for the Applicant: Ms L Ticehurst

Solicitor for the Applicant: Kilpatrick Hatton

Solicitor for the Respondent: No appearance
ORDERS

NCC 240 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FUMIC

Applicant

AND:
MR FUMIC

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

23 MAY 2022

THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’), service of the Initiating Application filed 22 April 2022, the affidavit of Ms Fumic filed 22 April 2022 and the financial statement of Ms Fumic filed 22 April 2022 are dispensed with.
2.Pursuant to section 79A(1)(b) and 79A(1)(c) of the Family Law Act 1975 (Cth), Orders 8 to 11 inclusive of the orders pronounced on 16 December 2021 (as amended on 24 January 2022) (‘the Final Orders’) be set aside (noting such orders provided for a superannuation split from the Respondent Husband to the Applicant Wife) and in lieu thereof, the Husband shall pay to the Wife an additional sum of $15,000, such sum to be paid out of an adjustment from the proceeds of the sale of the B Street, Suburb C property, as set out below.
3.Order 5 of the Final Orders be set aside.
4.Effective immediately, the Applicant Wife has the right to occupy the property located at B Street, Suburb C in the State of New Sought Wales (‘the B Street, Suburb C property’), to the exclusion of the Respondent Husband, however, if, after seven (7) days, the wife has been unable to exercise exclusive occupation of the B Street, Suburb C property, the wife shall notify the court of same and pursuant to rule 11.56 of the Rules, a Warrant of Possession shall issue forthwith in the following form:
(a)To the Marshal of the Court, to all officers of the Australian Federal Police and to all officers of the police force in the State…

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: Fumic & Fumic [2022] FedCFamC2F 654
Case: [2022] FedCFamC2F 654
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to enforce and vary the terms of financial orders made between the parties in a property adjustment matter. The wife sought to enforce the orders and to vary the orders in circumstances where the husband had not complied with the orders and had depleted his superannuation interest to a negligible amount. The husband did not appear or file any submissions in response. The court found that it was appropriate to conduct the hearing on an undefended basis and made orders to enforce and vary the orders as sought by the wife. The wife was successful in her application and an indemnity costs order was made against the husband in the sum of $21,102.38.

Orders