Peskos & Tarpin - [2021] FedCFamC2F 301

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Peskos & Tarpin [2021] FedCFamC2F 301

File number(s): PAC 4149 of 2020

Judgment of: JUDGE MURDOCH

Date of judgment: 4 November 2021

Catchwords: FAMILY LAW – INTERIM PROPERTY PROCEEDINGS – application to subdivide a property and obtain Strata Plan – where the Husband is the sole registered proprietor – where the Husband resists any property adjustment on a final basis – where the Wife bears the evidentiary onus to establish the necessary preconditions – where there is no evidence as to whether a subdivision could be achieved, the potential cost of a subdivision, or as to the value of the property at current or were it to be subdivided – application dismissed

Legislation: Environmental Planning and Assessment Act 1979;
Family Law Act 1975 (Cth) ss 79, 114(1), 114(3).

Cases cited:
Farr and Farr (1976) FLC 90-133;

Massalski and Riley [2016] FamCA 144;

Perot and Perot [2012] FamCA 958;

Sieling & Sieling (1979) FLC 90-627.

Division: Division 2 Family Law

Number of paragraphs: 43

Date of hearing: 25 October 2021

Place: Parramatta

Counsel for the Applicant: Mr Givney

Solicitor for the Applicant: Apex Legal

Counsel for the Respondent: Mr Grew

Solicitor for the Respondent: Nora Family Lawyers
ORDERS

PAC 4149 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PESKOS

Applicant

AND:
MR TARPIN

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

4 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The Application in a Case filed by the Wife on 29 July 2021 is dismissed.
2.The matter is listed for submissions as to costs and further Directions at 10:00 am on 16 November 2021.
3.By no later than 4pm on 12 November 2021 the parties are to:-
(a)file and serve a Costs Notice in accordance with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;
(b)file and serve an Undertaking as to Disclosure pursuant to Rules 6.02 and 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and
(c)file and serve a Financial Questionnaire in accordance with the form available on the Court’s website.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym Peskos & Tarpin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

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 Peskos & Tarpin

Details

AGLC: Peskos & Tarpin [2021] FedCFamC2F 301
Case: [2021] FedCFamC2F 301
Decision Date: 4 November 2021

CaseChat Overview and Summary

Ms Peskos filed an application under Division 2 of the Federal Circuit and Family Court of Australia seeking to subdivide a property and obtain a Strata Plan. The property is registered solely in the name of her former husband, Mr Tarpin. Mr Tarpin opposed any property adjustment on a final basis. The court was required to determine whether the application should be dismissed on the basis that the applicant had not discharged the evidentiary onus to establish the necessary preconditions. The applicant bore the burden of proof to establish the feasibility of the subdivision, its potential cost, and the value of the property both currently and if it were to be subdivided. There was no evidence before the court on these points.

The court dismissed the application, noting that there was no evidence presented by the applicant as to whether a subdivision could be achieved, the potential cost of a subdivision, or the value of the property either currently or if it were to be subdivided. The court concluded that the applicant had not discharged the evidentiary onus to establish the necessary preconditions. The matter was listed for submissions as to costs and further directions. The court ordered that the parties file and serve a Costs Notice, an Undertaking as to Disclosure, and a Financial Questionnaire by a specified date. The form of the order was subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

PAC 4149 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS PESKOS

Applicant

AND:

MR TARPIN

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

4 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The Application in a Case filed by the Wife on 29 July 2021 is dismissed.

2. The matter is listed for submissions as to costs and further Directions at 10:00 am on 16 November 2021.

3. By no later than 4pm on 12 November 2021 the parties are to:-

(a) file and serve a Costs Notice in accordance with Rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021;

(b) file and serve an Undertaking as to Disclosure pursuant to Rules 6.02 and 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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.

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 4149 of 2020
Judgment of:	JUDGE MURDOCH
Date of judgment:	4 November 2021
Catchwords:	FAMILY LAW – INTERIM PROPERTY PROCEEDINGS – application to subdivide a property and obtain Strata Plan – where the Husband is the sole registered proprietor – where the Husband resists any property adjustment on a final basis – where the Wife bears the evidentiary onus to establish the necessary preconditions – where there is no evidence as to whether a subdivision could be achieved, the potential cost of a subdivision, or as to the value of the property at current or were it to be subdivided – application dismissed
Legislation:	Environmental Planning and Assessment Act 1979; Family Law Act 1975 (Cth) ss 79, 114(1), 114(3).
Cases cited:	Farr and Farr (1976) FLC 90-133; Massalski and Riley [2016] FamCA 144; Perot and Perot [2012] FamCA 958; Sieling & Sieling (1979) FLC 90-627.
Division:	Division 2 Family Law
Number of paragraphs:	43
Date of hearing:	25 October 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	Apex Legal
Counsel for the Respondent:	Mr Grew
Solicitor for the Respondent:	Nora Family Lawyers

PAC 4149 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS PESKOS Applicant
AND:	MR TARPIN Respondent

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	4 NOVEMBER 2021