Kuzmin & Russo

This matter concerned an application to vary or set aside final consent orders made in December 2019 between the parties, Mr. Kuzmin (the Father) and Ms. Russo (the Mother). The dispute arose because the previously made orders were unable to be implemented as intended, specifically concerning a superannuation split. The application was heard by Judge O'Shannessy in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the application to vary the consent orders should be considered, and if so, whether the orders should be varied or set aside. A key issue was whether a unilateral mistake had occurred in relation to the superannuation split, and whether this mistake warranted intervention by the court to vary or set aside the existing orders. The court also considered the admissibility and relevance of evidence concerning the parties' subjective intentions and the standard of proof required for allegations of deliberate misleading of the court.

Judge O'Shannessy reasoned that while subjective intentions are generally not relevant to the interpretation of orders, they are admissible when dealing with issues of mistake. The court noted that many factual disputes could not be resolved, but sufficient findings were made to determine the legal dispute. The Mother was found to be frank and reliable in her evidence, while certain aspects of the Father's evidence, including the absence of a specific figure for an equity payment in the original orders and inconsistencies regarding superannuation equalisation, raised questions about his credit. The court applied the principles of evidence as set out in section 140 of the Evidence Act 1993 (Cth), requiring matters to be proved on the balance of probabilities.

The court ultimately made orders, the details of which were set out in a Schedule of Draft Orders.