FAMILY COURT OF AUSTRALIA
| KEDRINA & AMERY | [2020] FamCA 117 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Injunction – Permanent Stay of Proceedings – Where wife makes application to set aside orders under s 79A of the Family Law Act1975 (Cth) and to set aside a Spouse Maintenance agreement – Where respondent husband seeks “Anshun estoppel” summary dismissal and or permanent stay of the proceedings as abuse of process – Where discussion of applicable principles – Where order made as sought by the husband. |
| Family Law Act 1975 (Cth) ss 79A, 90C Family Law Rules 2004 (Cth) r 10.12 |
| Beck v Weinstock; Beck v LW Furniture Consolidated Pty Ltd [2012] NSWCA 289 Brisbane South Regional Health Authority v Taylor [1996] HCA 25 Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] Jess & Garvey [2018] FamCAFC 44 Keehan & Keehan [2019] FamCAFC 250 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Rogers v The Queen [1994] 181 CLR 251 Timbercorp Finance Pty Ltd (in liquidation) v Collins; Timbercorp Finance Pty Ltd (in liquidation) v Tomes [2016] HCA 44 Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 UBS AG v Tyne [2018] HCA 45 Walton v Gardiner [1993] HCA 77 Wong v Minister for Immigration and Indigenous Affairs [2004] 146 FCR 10 |
| APPLICANT: | Mr Kedrina |
| RESPONDENT: | Ms Amery |
| FILE NUMBER: | PAC | 2 | of | 2018 |
| DATE DELIVERED: | 28 February 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 18 and 19 December 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson SC with him Mr Roche of counsel on 18 December 2019 and Mr Richardson SC on 19 December 2019 |
| SOLICITOR FOR THE APPLICANT: | Barkus Doolan |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | Ms Amery |
Orders
That the applicant wife’s Initiating Application filed 2 January 2018 (as amended) be permanently stayed.
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 Kedrina & Amery 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 a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2 of 2018
| Mr Kedrina |
Applicant
And
| Ms Amery |
Respondent
REASONS FOR JUDGMENT
Thirteen years after final orders and on 2 January 2018 the applicant wife filed a further Initiating Application. In that application the wife sought to set aside property consent orders made on 28 September 2005 and to set aside and/or declare invalid certain financial agreements and other documents entered into between the wife and her former husband dated 1 September 2005.
On 15 March 2018 the respondent husband…
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- KEDRINA & AMERY [2020] FamCA 117
- Case
- [2020] FamCA 117
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the wife's application to set aside the previous orders and agreement should be permanently stayed as an abuse of process, specifically invoking the doctrine of *Anshun* estoppel. This required the court to consider the principles governing the finality of litigation and the circumstances in which a party may be prevented from raising claims that could have been, or were, litigated in prior proceedings.
Foster J applied the principles of *Anshun* estoppel, which prevents a party from bringing a claim that could and should have been litigated in earlier proceedings between the same parties. His Honour found that the issues raised by the wife in her application were matters that could and should have been addressed in the original proceedings that led to the 2015 orders. The court determined that allowing the wife to pursue these claims would constitute an abuse of process, undermining the finality of the previous judgment.
Consequently, Foster J ordered that the wife's Initiating Application filed on 2 January 2018, as amended, be permanently stayed.
Orders
Orders of the court
1.
That the applicant wife’s Initiating Application filed 2 January 2018 (as amended) be permanently stayed.
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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