Popovic & Popovic - [2023] FedCFamC2F 536

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Popovic & Popovic [2023] FedCFamC2F 536

File number(s): PAC 4697 of 2022

Judgment of: JUDGE TAGLIERI

Date of judgment: 10 May 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – interim orders – whether real property ought to be sold – where wife seeks to remain living in the property on an interim basis – application dismissed

Legislation:
Family Law Act 1975 (Cth), ss 75(2), 75(2)(b), 75(2)(c), 79, 80(1)(h)

Federal Circuit and Family Court of Australia Act 2021 ss 8, 132, 254

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 s 8

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) sch 4 cl 2, rr 5.01, 14.05(2) 14.08

Federal Circuit and Family Court of Australia Practice Direction – Transitional arrangements, pp 1, 2

Cases cited:
Cord & Cord [2013] FMCAFam 61

Riley & Massalski [2017] FamCA 985

Strahan & Strahan (Interim Property Orders) [2009] FamCACF 166

Division: Division 2 Family Law

Number of paragraphs: 35

Date of hearing: 2 May 2023

Place: Hobart

Counsel for the Applicant: Ms Godden, solicitor

Solicitor for the Applicant: Godden Lawyers

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: McClarens Lawyers
ORDERS

PAC 4697 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR POPOVIC

Applicant

AND:
MS POPOVIC

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

10 May 2023

THE COURT ORDERS THAT:
1.The Order made on 15 March 2023, staying the orders of the Court made on 23 December 2022, be discharged.
2.The Application for Review filed 13 January 2023 is dismissed save to the extent that order 14 of the orders made on 23 December 2022 is varied by addition as a condition of the sale of the matrimonial home, that completion of any contract of sale not occur on a date within 30 days prior to 11 October 2023 when the child X born in 2005 commenced undertaking High School Certificate examinations or within 14 days after her last examination on 3 November 2023.
3.The Application for costs by the Husband on the Application for Review filed 13 January 2023 is to be determined in Chambers on the papers, by consent of the parties.
4.Within 7 days of the date of these Orders, the Husband file and serve short written submissions not exceeding two A4 pages in length in relation to the costs orders sought.
5.Within 7 days of service of the written submissions referred to in Order 4, the Wife file and serve written submissions in reply not exceeding two A4 pages in length.

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…

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 Popovic & Popovic

Details

AGLC: Popovic & Popovic [2023] FedCFamC2F 536
Case: [2023] FedCFamC2F 536
Decision Date

CaseChat Overview and Summary

This judgment concerns an Application for Review filed by the Wife, Ms Popovic, against interim property orders made by a Senior Judicial Registrar on 23 December 2022. The Wife seeks to discharge or set aside these orders which include the sale of the former matrimonial home and consequent distribution of $50,000 from the net proceeds of sale after discharge of the mortgage secured against the property and other outgoings. The Husband, Mr Popovic, resists the Application for Review and seeks to preserve the orders made by way of partial property settlement. The Court found that there ought to be an exercise of power to make interim property orders because it is in the interests of justice to do so. The Court considered that there is no evidence about the likely date of a final hearing and the parties’ submissions reflect an agreed minimum position that a final hearing is likely to be up to 12 months from now. The Court was also satisfied that there is likely to be sufficient net value in the non-superannuation pool of assets to make final property orders that are just and equitable despite the sale of the property and distribution of some funds to the parties from the net sale proceeds on an interim basis. The Court rejected the submission that ordering sale of the property now creates uncertainty for the Wife, instead it will define the net proceeds of sale and provide certainty about what dollar sum she is likely to receive upon various percentage property adjustment outcomes. The Court ordered that the Order made on 15 March 2023, staying the orders of the Court made on 23 December 2022, be discharged and that the Application for Review filed 13 January 2023 is dismissed save to the extent that order 14 of the orders made on 23 December 2022 is varied by addition as a condition of the sale of the matrimonial home, that completion of any contract of sale not occur on a date within 30 days prior to 11 October 2023 when the child X born in 2005 commenced undertaking High School Certificate examinations or within 14 days after her last examination on 3 November 2023. The Court also ordered that the Application for costs by the Husband on the Application for Review filed 13 January 2023 is to be determined in Chambers on the papers, by consent of the parties.

Orders