Legal Research
Cases
Naidu & Seth

Naidu & Seth

Case [2021] FedCFamC2F 229 25 October 2021

Consent Orders

Miscarriage of Justice

Disclosure

Settlement of Property Disputes

Variation or Setting Aside of Orders

Family Law

No judgment structure available for this case.

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 2
Naidu & Seth [2021] FedCFamC2F 229

File number(s): PAC 1632 of 2018

Judgment of: JUDGE OBRADOVIC

Date of judgment: 25 October 2021

Catchwords: FAMILY LAW – Property – Setting aside property orders – consent orders – relevant legal principles.

Legislation: Family Law Act 1975 (Cth) ss. 79, 79A

Cases cited: Arpas & Arpas [1989] FamCA 37
Briese & Briese [1985] FamCA 23
Florie and Florie [1988] FamCA 26
Gilbert & Estate of Gilbert (deceased) [1989] FamCA 95
Gebert & Gebert [1990] FamCA 105
Holland & Holland [1982] FamCA 31
In the Marriage of Spratley(No.2) (1978) FLC 90-414
Jones v Dunkel [1959] HCA 8
Livesey v Jenkins [1985] 1 All ER 106
Molier & Van Wyk [1989] FamCA 85
Mullane v Mullan [1983] HCA 4
Official Trustee in Bankruptcy & Donovan & Donovan [1996] FamCA 58
Oriolo v Oriolo [1985] FamCA 54
Parker & Parker [1983] FamCA 54
Patching & Patching [1995] FamCA 46
Prowse & Prowse [1994] FamCA 91
Waterman & Waterman [2017] FamCAFC 23

Division: Division 2 Family Law

Date of hearing: 30 November 2020 & 1 June 2021

Place: Parramatta

Number of paragraphs: 76

Appearing for the Applicant: Mr Mishra

Solicitor for the Applicant: Reline Legal

Counsel for the Respondent: Mr De Brennan

Solicitor for the Respondent: Juris Australia Lawyers
ORDERS

PAC 1632 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NAIDU

Applicant

AND:
MS SETH

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

25 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 5 June 2020 is dismissed.

THE COURT NOTES THAT:
A.The Respondent’s cost of the first day of hearing were reserved.
B.The parties may apply pursuant to Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for an order for costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Naidu & Seth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

This is an application made pursuant to s.79A of the Family Law Act 1975 (Cth) (“the Act”). The applicant, Mr Naidu, moves the Court under s.79A(1)(a) of the Act for an order setting aside the s.79 property orders made by the then named Federal Circuit Court…

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 Naidu & Seth

Details

AGLC: Naidu & Seth [2021] FedCFamC2F 229
Case: [2021] FedCFamC2F 229
Decision Date

CaseChat Overview and Summary

This is an application made pursuant to s.79A of the Family Law Act 1975 (Cth). The applicant, Mr Naidu, seeks an order setting aside the s.79 property orders made by the then named Federal Circuit Court of Australia, by consent, on 25 September 2018. The applicant alleges that there has been a miscarriage of justice on the basis that he agreed to the 2018 orders in the absence of informed consent and legal advice, and that there has been a failure by the respondent to disclose relevant information. The Court found that the applicant had not established any miscarriage of justice such that the Court would exercise its discretion and set aside the 2018 orders. For all of those reasons, the application was dismissed. The Court noted that the parties may apply pursuant to Rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for an order for costs.

Orders