Rinsky and Rinsky

[2008] FamCA 427

FAMILY COURT OF AUSTRALIA

RINSKY & RINSKY [2008] FamCA 427

FAMILY LAW – PRACTICE AND PROCEDURE – husband seeks summary dismissal of wife’s application pursuant to s 79A to set aside final property settlement orders made in 1998 – included order that the husband pay the wife an amount upon receipt of his superannuation entitlement, calculated pursuant to specified formula – whether husband’s retirement 4 days early resulted in any miscarriage of justice – whether miscarriage of justice due to husband’s failure to take lump sum which included a capital sum based upon husband foregoing any pension – final property orders made on basis husband would not capitalise all pension entitlement – pension taken into account at trial – whether court incorrectly made purported order for spousal maintenance under s 79 – reference to definition of “property” in 1998 – no reasonable cause of action – s 79A application “doomed to fail” – application for final orders summarily dismissed.

Family Law Act 1975 (Cth) ss 79 & 79A
Family Law Rules 2004 (Cth) r 10.12

Lindon v Commonwealth (No 2) (1996) 70 ALJR 541
Bigg v Suzi (1998) FLC 92-799
Beck and Beck (2004) FLC 93-181
Gitane and Velacruz (2007) FLC 93-309
Goldman and Goldman [2007] FamCA 578
Korsky and Bright and Anor [2007] FamCA 245
T and T (Pension Splitting) (2007) FLC 93-263

APPLICANT: Mrs Rinsky (By her Case Guardian Ms M)

RESPONDENT: Mr Rinsky

FILE NUMBER: ADC 6404 of 2007

DATE DELIVERED: 18 June 2008

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

Case Guardian – Mr M

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Scales & Partners

Orders

1. That the application of the wife filed on the 19 December 2007 for final orders be dismissed. 

2. I will hear parties in relation to the application for costs.

IT IS NOTED that publication of this judgment under the pseudonym Rinsky & Rinsky is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 6404  of 2007

Mrs Rinsky (By her Case Guardian Mr M)

Applicant

And

Mr Rinsky

Respondent

REASONS FOR JUDGMENT

Introduction

1. The husband seeks the summary dismissal of the wife’s application to set aside the final property settlement orders made at the conclusion of proceedings in 1998 and 1999.

Background and Chronology

1. The wife filed an Application for Final Orders on the 19 December 2007 in which she sought orders to set aside the order made at paragraph 1(d) of the final property settlement orders made by Judicial Registrar Forbes on the 24 December 1998.  The wife sought other orders in relation to the husband’s superannuation.  The orders sought are set out in the Final Orders Application (document 1) filed on the 19 December 2007:

   “1.To set aside the order made at paragraph 1(d) of the original court order and make…