Moto and Moto - [2019] FamCA 169

FAMILY COURT OF AUSTRALIA

MOTO & MOTO

[2019] FamCA 169

FAMILY LAW – PROPERTY – Section 79A – Where the Consent Orders sought to be set aside were made over twenty years ago – Where both parties sought that the court make a determination of whether there had been circumstances giving rise to a miscarriage of justice under s79A(1)(a) and did not seek that the court exercise its discretion to set aside the orders – Where the husband contends that he did not consent to the orders – Where the legal advice the husband received in relation to the Consent Orders was so inadequate as to constitute an absence of legal advice. – Where English is not the husband’s first language and the Consent Orders were not translated for him – Where I am satisfied that the circumstances surrounding the property settlement orders amount to a miscarriage of justice under s79A(1)(a).

Family Law Act 1975 (Cth) ss 44(3), 75(2), 79, 79A

Badawi & Badawi (2017) FLC 93-784
Holland & Holland (1982) FLC 91-243
In the Marriage of Clifton v Stuart (1991) FLC 92194
In the Marriage of McIntyre&McIntyre (1994) FLC 92-468
In the Marriage of Patching (1995) 18 Fam LR 675
Liu & Liu (1984) FLC 92-211
Molier & Vanwyck (1980) FLC 90-911
Trustee of Bankruptcy of Hicks & Hicks & Anor [2018] FamCAFC 37
Waterman & Waterman [2017] FamCAFC 23

APPLICANT:

Mr Moto

RESPONDENT:

Ms Moto

FILE NUMBER:

PAC

2890

2016

DATE DELIVERED:

19 March 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

27 - 29 August 2018, 24 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams SC

LAWYER FOR THE APPLICANT:

Advance Lawyers Group

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC

LAWYER FOR THE RESPONDENT:

Bricknell Legal Lawyers

Orders

I am satisfied that the applicant has proved a circumstance under section 79A(1)(a) and there has been a miscarriage of justice by reason of this circumstance.

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 Moto & Moto 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 2890 of 2016

Mr Moto

Applicant

And

Ms Moto

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are (“the Applicant” or “the husband”) and the (“the Respondent” or “the wife”) who divorced in Country A in 1986.
In August 1997 orders were made (“the property settlement orders”) pursuant to section 79 of the Family Law Act 1975 (“the Act”) adjusting the parties’…

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: Moto and Moto [2019] FamCA 169
Case: [2019] FamCA 169
Decision Date: 19 March 2019

CaseChat Overview and Summary

The applicant, Moto, sought to set aside a consent order made in 2019, alleging a circumstance under section 79A(1)(a) of the *Family Law Act 1975* (Cth) that had resulted in a miscarriage of justice. The respondent was also named Moto. The dispute concerned the finality of the 2019 consent orders.

The primary legal issue before Hannam J was whether the applicant had established a circumstance within the meaning of section 79A(1)(a) of the *Family Law Act 1975* (Cth) that warranted setting aside the consent orders, and if so, whether a miscarriage of justice had occurred by reason of that circumstance.

Hannam J found that the applicant had successfully demonstrated the existence of a relevant circumstance under section 79A(1)(a) and that this circumstance had indeed led to a miscarriage of justice. The court was satisfied that the conditions for setting aside the consent orders had been met.

The court indicated that it was satisfied that the applicant had proved a circumstance under section 79A(1)(a) and that a miscarriage of justice had occurred by reason of this circumstance. The precise form of the final orders was to be subject to the entry of the order in the Court’s records.

Orders

Orders of the court

I am satisfied that the applicant has proved a circumstance under section 79A(1)(a) and there has been a miscarriage of justice by reason of this circumstance.

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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