Imbardelli and Imbardelli (No. 2) - [2018] FamCA 865

FAMILY COURT OF AUSTRALIA

IMBARDELLI & IMBARDELLI (NO. 2)

[2018] FamCA 865

FAMILY LAW – PROPERTY – Section 79A application – whether the orders made in 2010 should be set aside on the basis there has been a miscarriage of justice – whether the orders should be set aside on the basis that the parties had reconciled and it can be inferred that the parties impliedly consented to the orders being set aside – where the wife has long standing mental health issues and was financially dependent upon the husband- where the wife was estranged from her family and had no other support – where in the year leading up to the consent orders being made the wife had given birth to premature twins, suffered physical complications after their birth, had to care for the parties’ 14 month old daughter, had been physically assaulted by the husband, had initiated family law proceedings and had spent approximately two months in hospital receiving psychiatric treatment – found it was unconscionable for the husband to procure the wife’s consent to the orders in the circumstances – alternative finding made that the parties had reconciled and that the circumstances of that relationship give rise to an inference that they no longer intended to be bound by those order- consent implied.

Blackwell v Scott (2017) 56 Fam LR 474
Blomley v Ryan (1956) 99 CLR 362
In the Marriage of McCabe (1995) 19 Fam LR 579
O’Hurley & O’Hurley [2008] FamCAFC 57
Pavey and Pavey (1976) FLC 90-051
Sommerville & Sommerville (1999) 27 Fam LR 233
Thorne v Kennedy (2017) 350 ALR 1

Waterman & Waterman [2017] FamCAFC 23

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Ms Imbardelli

RESPONDENT:

Mr Imbardelli

FILE NUMBER:

MLC

8876

2009

DATE DELIVERED:

24 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

19, 20, 23, 27 April 2018, 2, 3 May 2018, 19 July 2018, 15 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dellidis

SOLICITOR FOR THE APPLICANT:

AMT Legal

COUNSEL FOR THE RESPONDENT:

Mr Q

SOLICITOR FOR THE RESPONDENT:

Pearsons Lawyers

Orders

The final property orders made by consent on 30 June 2010 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth).
The wife’s Amended Initiating Application filed 1 September 2017 be listed for further directions in the Registrar’s Duty List at 9.30 am on 16 November 2018.
I recuse myself from these proceedings.

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 Imbardelli & Imbardelli (No. 2) 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…

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

Case: [2018] FamCA 865
Decision Date: 24 October 2018

CaseChat Overview and Summary

In *Imbardelli and Imbardelli (No. 2)*, the Honourable Justice Macmillan of the Federal Circuit Court of Australia considered an application to set aside final property orders made by consent on 30 June 2010. The wife sought to have these orders rescinded.

The central legal issue before the court was whether the circumstances warranted setting aside the previously made final property orders pursuant to section 79A of the *Family Law Act 1975* (Cth). This section allows for the variation or setting aside of property orders in specific situations, such as where there has been a miscarriage of justice due to fraud, duress, or material non-disclosure.

Justice Macmillan determined that the final property orders should be set aside. While the specific reasoning for this decision is not detailed in the provided extract, the outcome indicates that the court found sufficient grounds under section 79A to interfere with the consent orders. The court also noted that it would recuse itself from further proceedings.

Consequently, the court ordered that the final property orders made by consent on 30 June 2010 be set aside. The wife's Amended Initiating Application was listed for further directions, and the judge recused themselves from the proceedings.

Orders

Orders of the court

The final property orders made by consent on 30 June 2010 be set aside pursuant to s 79A of the Family Law Act 1975 (Cth).

The wife’s Amended Initiating Application filed 1 September 2017 be listed for further directions in the Registrar’s Duty List at 9.30 am on 16 November 2018.

I recuse myself from these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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