Pellam & Valasco - [2021] FCCA 988

FEDERAL CIRCUIT COURT OF AUSTRALIA
Pellam & Valasco [2021] FCCA 988

File number(s): PAC 6127 of 2018

Judgment of: JUDGE NEWBRUN

Date of judgment: 14 May 2021

Catchwords: FAMILY LAW - Applications by Husband to set aside final property Orders and related property enforcement Orders - Applications dismissed.

Legislation:
Crimes Act 1900, s 253

Family Law Act 1975 (Cth), s 79A(1)(a)

Federal Circuit Court Rules 2001 r 16.05(2)(b)

Cases cited:
Byrne v Byrne (1965) 7 FLR 342

Badawi & Badawi [2017] FamCAFC 129

In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194

Lane & Lane (2016) FLC 93 – 699; [2016] FamCAFC 53

Taylor v Taylor (1979) FLC 90 – 674

Wint v Medimobile Pty Ltd [2016] FCCA 102.

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Number of paragraphs: 36

Date of last submission/s: 30 April 2021

Date of hearing: 15, 16, 18 February 2021, 8 March 2021, 22, 30 April 2021

Place: Parramatta

Solicitor for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Mr Ford

Table of Corrections

14 July 2021 Order 2 inserted into orders section
ORDERS

PAC 6127 of 2018

BETWEEN:
MS PELLAM

Applicant

AND:
MR VALASCO

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

14 MAY 2021

THE COURT ORDERS THAT:
1.The Application in a Case filed by the Husband on 28 January 2021 is dismissed.
2.The Application in a Case filed by the Husband on 29 January 2021 is dismissed.

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 under the pseudonym Pellam & Valasco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION AND BACKGROUND

This is firstly the determination of an Application a Case filed by the Husband on 29 January 2021 seeking an Order that the parties’ Consent Order dated 28 January 2020, relating to the sale and division of the net proceeds of sale of the parties’ property at Suburb C, inter alia, be set aside. The Orders sought in this Application in a Case are opposed by the Wife.
And secondly, this is the determination of a further Application in a Case filed by the Husband on 28 January 2021 seeking an Order to set aside or review the Court’s Orders dated 23 December 2020 relating to the issuing of a warrant for possession in respect to the Suburb C property, and including an Order that the Husband be ejected from that property. The Orders sought in that Application a Case are opposed by the Wife.
The Husband remains residing in the Suburb C property. The Wife is desirous of having the Suburb C property sold and previous Orders made in respect to the property being executed. She contends that the mortgagee bank Westpac is…

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 Pellam & Valasco

Details

AGLC: Pellam & Valasco [2021] FCCA 988
Case: [2021] FCCA 988
Decision Date: 14 May 2021

CaseChat Overview and Summary

In *Pellam & Valasco*, heard by Judge Newbrun, the husband sought to set aside final property orders and related property enforcement orders. The wife was the respondent to these applications.

The court was required to determine whether the husband's applications to set aside the final property and enforcement orders should be granted.

The judgment indicates that the husband's applications were dismissed. The court noted that the publication of the judgment under the pseudonym Pellam & Valasco was approved pursuant to s.121(9)(g) of the *Family Law Act 1975* (Cth), which generally prohibits the publication of identifying details in family law proceedings. The specific reasoning for the dismissal of the husband's applications is not detailed in the provided text.

The court ordered that the husband's applications filed on 28 January 2021 and 29 January 2021 be dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in a Case filed by the Husband on 28 January 2021 is dismissed.

2. The Application in a Case filed by the Husband on 29 January 2021 is dismissed.

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 under the pseudonym Pellam & Valasco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 6127 of 2018
Judgment of:	JUDGE NEWBRUN
Date of judgment:	14 May 2021
Catchwords:	FAMILY LAW - Applications by Husband to set aside final property Orders and related property enforcement Orders - Applications dismissed.
Legislation:	Crimes Act 1900, s 253 Family Law Act 1975 (Cth), s 79A(1)(a) Federal Circuit Court Rules 2001 r 16.05(2)(b)
Cases cited:	Byrne v Byrne (1965) 7 FLR 342 Badawi & Badawi [2017] FamCAFC 129 In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194 Lane & Lane (2016) FLC 93 – 699; [2016] FamCAFC 53 Taylor v Taylor (1979) FLC 90 – 674 Wint v Medimobile Pty Ltd [2016] FCCA 102. Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Number of paragraphs:	36
Date of last submission/s:	30 April 2021
Date of hearing:	15, 16, 18 February 2021, 8 March 2021, 22, 30 April 2021
Place:	Parramatta
Solicitor for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Mr Ford

Table of Corrections
14 July 2021	Order 2 inserted into orders section

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	14 MAY 2021