Novikov & Novikov

In the matter of Novikov v Novikov, the Court of Appeal granted the appellant leave to appeal and subsequently upheld the appeal. The primary issues before the court were whether the primary judge correctly exercised his discretion in setting aside certain orders, and if the procedural fairness was maintained during the proceedings. The appellant argued that the primary judge erred in setting aside orders made in the absence of the respondent, and that the judge misapplied the discretion conferred by Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court found that the primary judge acted on the wrong principle and failed to take into account material considerations, including the relevance of the medical certificate provided by the respondent. The court concluded that the primary judge's decision to set aside the orders was unreasonable and unjust.

The court re-exercised its discretion and set aside the orders made by the primary judge, substituting them with orders dismissing the respondent's application. The court also ordered that the respondent pay the costs of the appellant and the second respondent. Furthermore, all further listings and applications filed by the respondent were vacated. This decision ensures that the appellant can recover long-outstanding child support, which was recently recovered by the Child Support Agency. The court's ruling underscores the importance of correctly applying legal principles and considering all relevant factors when exercising discretionary powers in family law proceedings.