PALEN & PALEN (No.2)
[2020] FCCA 3221
•25 November 2020
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 2019), and as a result he did not fully understand the consequences of failing to participate in proceedings.
Additionally, the Husband had taken a carer-type role for his parents, both of whom have been very unwell over the year preceding the filing of his Affidavit on 16 June 2020. Prior to the height of the COVID19 outbreak, the Husband was visiting his Mother every other day. The Husband’s Father is also unwell. The Husband tries to visit him at least twice a week. The Husband’s parents ailing health has been causing him a significant amount of distress in the first half of 2020, and it has contributed to him taking his focus off having legal matters finalised with the Wife.
The Court, in accepting the Husband’s explanation for his absence of the undefended hearing, has not overlooked the Wife’s evidence that after the Husband was served with her Court documents in May 2019, the Wife’s solicitor sent numerous emails to the Husband in relation to the proceedings.
The Court finds that the Husband does have material arguments available to him that might reasonably lead to the making of Orders different to those property orders sought to be set aside.
In the Court’s property judgment, the Court found the value for the subject property to be $500,000. The Husband, in his Tender Bundle of documents has adduced 3 real estate agent market appraisals for the value of the subject property, ranging from $520,000 to as high as $560,000.
Under the Court’s property judgment, the Husband was to receive, inter alia, 35% of the net value of the property ($500,000 less mortgage loan $180,000) being $320,000; this resulted in a figure of $112,000. On the other hand, if the value of the property is found to be $560,000, then the net value is $380,000, and 35% of $380,000 is $133,000. The difference between $112,000 and $133,000 is $21,000, being, in the circumstances of this Case, a not insignificant sum. This sum of $21,000 could potentially be a greater figure, should the Court, on the assumption that the within Application is allowed and the matter proceeds to a final defended property hearing, find that the Husband inter alia, should receive more than 35% of the parties’ net non-superannuation assets.
Further, in terms of material arguments available to the Husband if the matter proceeds to a defended property hearing, there is force to the Husband’s submission that the Court made no reference to the parties’ homemaker contributions in its reasons for judgment, whereas the Husband asserts, in paragraph 18 of his Affidavit filed 16 June 2020, that he made significant homemaker contributions during the parties relationship.
The Court is not persuaded that the Wife relevantly failed to make financial disclosure in not disclosing her interest under the will; in this regard the Court refers to the Wife’s paragraph 37 of her Affidavit filed 2 July 2020.
The Court’s judgment was 22 May 2020 and the Husband filed his Application in a Case on 2 June 2020, being filed in a timely manner.
As to potential prejudice to the Wife if the Husband’s within Application is allowed, the Wife asserts that pursuant to the Court’s Orders of 22 May 2020, she has made an Application for the purposes of refinancing to be able to obtain sole occupation of the subject property. She asserts that she is concerned that in the event that she has to discontinue this Application that this will have a significant impact on her credit rating. In relation to this asserted concern, the Wife adduces no independent evidence. The Court is not persuaded that such asserted prejudice is of such significance that it would, on balance, persuade the Court to disallow the Husband’s within Application.
In the above circumstances, it will be in the interests of justice to set aside the Court’s Orders of 22 May 2020 pursuant to Rule 16.05(2)(a) of this Court’s Rules.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 25 November 2020
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