Mifsud and Mifsud - [2018] FamCA 1116

FAMILY COURT OF AUSTRALIA

MIFSUD & MIFSUD

[2018] FamCA 1116

FAMILY LAW – PROPERTY – Application for interim property distribution – Where the wife seeks an order that the husband transfer real estate to her – Where the husband seeks final property orders for that real estate to ultimately be transferred to the wife – Where the Court is unable to determine that it is in the interests of justice for a partial interim property distribution to be ordered – Application dismissed.

Family Law Act 1975 (Cth) ss. 79, 80(1)(h), 114

Family Law Rules 2004 (Cth), r. 1.04

Davidson and Davidson (No 2) (1994) FLC 92-469
Felice v Felice [2011] FamCA 162
Gabel & Yardley (2008) FLC 93-386
In the Marriage of Farr (1976) FLC 90-133
Martin & Martin and Ors [2013] FamCA 222
Medlow & Medlow (2016) FLC 93-692
Philips & Samuels [2017] FamCA 125
Sresbodan & Sresbodan and Ors [2013] FamCA 480
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Sully & Sully (No 2) [2016] FamCA 706
Wenz v Archer (2008) 40 FamLR 212

APPLICANT:

Ms Mifsud

RESPONDENT:

Mr Mifsud

FILE NUMBER:

WOC

1118

2015

DATE DELIVERED:

21 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

12 December 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hansons Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Acorn Lawyers

Orders

The wife’s Application in a Case filed on 2 October 2018 be dismissed.

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 Mifsud & Mifsud 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 SYDNEY

FILE NUMBER: WOC 1118 of 2015

Ms Mifsud

Applicant

And

Mr Mifsud

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter, the wife seeks an order, by way of interim property distribution, that the husband transfer a property located at B Street, Suburb C NSW … (“the Suburb C property”) into her name.
That application is made in circumstances where progression of the wife’s substantive application has been delayed as result of criminal proceedings brought against the husband in the District Court of New South Wales. Those criminal proceedings involve events that occurred during the course of the parties’ relationship. Accordingly, the proceedings in this Court have been delayed, as requiring the husband to respond to certain matters relevant to them could prejudice the hearing of his criminal charges.
The wife contends that, through various means, including retaining new legal representatives at a late stage…

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 Mifsud and Mifsud

Details

AGLC: Mifsud and Mifsud [2018] FamCA 1116
Case: [2018] FamCA 1116
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of *Mifsud and Mifsud*, heard before McClelland J, the wife sought to bring an Application in a Case filed on 2 October 2018. The precise nature of the dispute is not detailed in the provided text, but it is clear that the wife initiated proceedings by filing this application.

The central legal issue before the court was whether the wife's Application in a Case, filed on 2 October 2018, should be permitted to proceed. The court was required to determine the validity or appropriateness of this application.

McClelland J ultimately dismissed the wife's Application in a Case. The reasoning behind this dismissal is not elaborated upon in the provided extract, but the outcome indicates that the court found no grounds to allow the application to continue.

The final order of the court was that the wife's Application in a Case filed on 2 October 2018 be dismissed, subject to the formal entry of the order in the Court's records.

Orders

Orders of the court

The wife’s Application in a Case filed on 2 October 2018 be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

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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