Olmos and Radev - [2018] FCCA 2294

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLMOS & RADEV

[2018] FCCA 2294

Catchwords:
FAMILY LAW – Property proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, Rule 8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant:

MR OLMOS

Respondent:

MS RADEV

File Number:

PAC 843 of 2015

Judgment of:

Judge Newbrun

Hearing date:

1 August 2018

Date of Last Submission:	3 August 2018
Delivered at:	Parramatta

Delivered on:

22 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr Fowler

Solicitors for the Applicant:

Mcintosh Mcphillamy & Co Legal Services

Counsel for the Respondent:

Mr Wong

Solicitors for the Respondent:

Watts Mccray

ORDERS

These property and parenting proceedings, and all extant applications, are forthwith transferred to the Family Court of Australia at Parramatta, and listed for directions on 11 September 2018 at 9:30 am.
By consent, that the Applicant to the Application in a Case filed on 30 July 2018 file and serve on the Respondent Points of Claim summarising the relief sought by the Applicant and the facts relied upon by the Applicant in support of that relief by 5pm on 31 August 2018, in relation to the Applicant's contention that she and the Respondent are entitled to an equitable claim in the property at Property A, which is legally owned by Company A Pty Limited as Trustee of the Trust No. 2 with the Respondent to the Application in a Case to file and serve his Points of Defence on or before 28 days after service of the Points of Claim.
By consent, the Court notes that it is the application of the Applicant to the Application in a Case filed on 30 July 2018 to transfer these proceedings to the Family Court of Australia and the Applicant estimates the required time for the Final Hearing to be five (5) days. The Respondent to the Application in a Case consents to the transfer based on the Applicant's estimate of time required by the Applicant to present her case and to cross-examine the Respondent's witnesses, noting the Applicant also contends complex questions of fact and law.

NOTATION

The Court refers to its written judgment in relation to the above transfer Order.

IT IS NOTED that publication of this judgment under the pseudonym Olmos & Radev is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 843 of 2015

MR OLMOS

Applicant

And

MS RADEV

Respondent

REASONS FOR JUDGMENT

The within Reasons for Judgment relate to the application made by the Respondent wife on 1 August 2018 that these parenting and property proceedings be transferred to the Family Court of Australia. This application was consented to by the Applicant husband.
The wife’s application for transfer had also been sought in her Application in a Case filed 30 July 2018, returnable before the Court on 1 August 2018, in conjunction with a proposed interim…

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 Olmos and Radev

Details

AGLC: Olmos and Radev [2018] FCCA 2294
Case: [2018] FCCA 2294
Decision Date: 22 August 2018

CaseChat Overview and Summary

In property and parenting proceedings before Judge Newbrun, the applicant sought to transfer the matter to the Family Court of Australia. The dispute involved claims concerning equitable interests in a property legally owned by a company as trustee for a trust, with the respondent also a party to the proceedings.

The court was required to determine whether to grant the applicant's request to transfer the proceedings to the Family Court of Australia. This involved considering the nature of the claims, including complex questions of fact and law, and the estimated time required for a final hearing.

By consent of the parties, the court ordered the transfer of the proceedings to the Family Court of Australia at Parramatta, with a directions hearing scheduled for 11 September 2018. The court also ordered, by consent, that the applicant file and serve Points of Claim by 31 August 2018, detailing her equitable claim to the property and the supporting facts. The respondent was to file and serve Points of Defence within 28 days of service of the Points of Claim. The court noted the applicant's estimate of five days for the final hearing and the respondent's consent to the transfer based on this estimate and the applicant's contention of complex factual and legal issues.

Orders

Orders of the court

These property and parenting proceedings, and all extant applications, are forthwith transferred to the Family Court of Australia at Parramatta, and listed for directions on 11 September 2018 at 9:30 am.

By consent, that the Applicant to the Application in a Case filed on 30 July 2018 file and serve on the Respondent Points of Claim summarising the relief sought by the Applicant and the facts relied upon by the Applicant in support of that relief by 5pm on 31 August 2018, in relation to the Applicant's contention that she and the Respondent are entitled to an equitable claim in the property at Property A, which is legally owned by Company A Pty Limited as Trustee of the Trust No. 2 with the Respondent to the Application in a Case to file and serve his Points of Defence on or before 28 days after service of the Points of Claim.

By consent, the Court notes that it is the application of the Applicant to the Application in a Case filed on 30 July 2018 to transfer these proceedings to the Family Court of Australia and the Applicant estimates the required time for the Final Hearing to be five (5) days. The Respondent to the Application in a Case consents to the transfer based on the Applicant's estimate of time required by the Applicant to present her case and to cross-examine the Respondent's witnesses, noting the Applicant also contends complex questions of fact and law.

NOTATION

The Court refers to its written judgment in relation to the above transfer Order.

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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