PALEN & PALEN (No.2) - [2020] FCCA 3221

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALEN & PALEN (No.2)

[2020] FCCA 3221

Catchwords:
FAMILY LAW – Property adjustment – application under Rule 16.05 to set aside property adjustment orders made on undefended basis – orders made under Rule 16.05(2)(a) setting aside Orders.

Legislation:

Federal Circuit Court Rules 2001, r 16.05

Cases cited:

Wint v Medimobile Pty Ltd [2016] FCCA 102

Applicant:

MR PALEN

Respondent:

MS PALEN

File Number:

PAC 1719 of 2019

Judgment of:

Judge Newbrun

Hearing date:

21 September 2020

Date of Last Submission:

21 September 2020

Delivered at:

Parramatta

Delivered on:

25 November 2020

REPRESENTATION

Solicitors for the Applicant:

Mr Seeney – King & York Lawyers

Solicitors for the Respondent:

Mr Fermanis – Bell Lawyers

ORDERS PENDING FURTHER ORDER

The Court’s Orders of 22 May 2020 are set aside pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001.

IT IS NOTED that publication of this judgment under the pseudonym Palen & Palen (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1719 of 2019

MR PALEN

Applicant

And

MS PALEN

Respondent

REASONS FOR JUDGMENT

This decision relates to the determination of the Husband’s Application in a Case filed 2 June 2020 seeking an Order that the Court set aside its property Orders of 22 May 2020, made on an undefended basis in the absence of the Husband, pursuant to Rule 16.05 of the Federal Circuit Court Rules 2001. This Application is opposed by the Wife.
The Husband relies upon his Case Outline of 10 pages, his Affidavit filed 16 June 2020, and a Tender Bundle of documents.
The Wife relies upon her recent Affidavit filed 2 July 2020, which includes 152 pages of annexures.
The Court refers to relevant legal principle applicable to Applications under Rule 16.05; see the decision in Wint v Medimobile Pty Ltd [2016] FCCA 102.
The Court finds that there is a reasonable explanation for the Husband’s absence at the undefended hearing.
The Husband, aged 47 years, is employed as a manager and earns about $60,000 a year. Whilst he was served with the Wife’s documents in May 2019, he did not seek legal advice at the time and since then lost those documents.
The Husband does not have a computer and can only access his emails through his phone. He generally only accesses his emails when he visits either of his parents. As a result, he will generally look at his emails once every 3 to 4 weeks.
The Husband cannot recall receiving any correspondence from the Wife’s lawyers whilst the matter was before the Court. The Husband does not recall receiving correspondence that the matter had been set down for an undefended hearing. He only became aware that the matter had been finalised (on an undefended basis) when he received the orders from the Court. The Husband has not had any legal advice since before proceedings were initiated (proceedings were initiated by the Wife in April…

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

Case: [2020] FCCA 3221
Decision Date: 25 November 2020

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, constituted by Newbrun J, considered an application by the parties, Palen & Palen, to set aside property adjustment orders previously made on an undefended basis. The core of the dispute concerned the validity and enforceability of these existing orders.

The primary legal issue before the court was whether the property adjustment orders, made pursuant to Rule 16.05(2)(a) of the Family Law Rules, should be set aside. This required the court to determine the appropriate circumstances and legal grounds for rescinding orders that had been granted in the absence of a party's participation.

Newbrun J's reasoning focused on the principles governing the setting aside of default orders in family law proceedings. The court applied the established legal test, which generally requires a party seeking to set aside such orders to demonstrate either that they have a meritorious defence or that there are exceptional circumstances justifying the setting aside. The court considered the evidence presented by the applicants in support of their application, weighing it against the established legal threshold for vacating orders made on an undefended basis.

The court ultimately made orders setting aside the previously made property adjustment orders.

Orders