SARBER & TACOMA - [2020] FCCA 2310

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARBER & TACOMA

[2020] FCCA 2310

Catchwords:
FAMILY LAW – Property – application to set aside final orders – allegation that final orders were not made by consent – submission raised that the entry of orders constitute a miscarriage of justice – whether the Court had jurisdiction to make the orders.

Legislation:

Family Law Act 1975 (Cth), ss.90SM, 90SN

Federal Circuit Court of Australia Act 1999 (Cth), s.15

Applicant:

MR SARBER

Respondent:

MS TACOMA

File Number:

MLC 1888 of 2019

Judgment of:

Judge McNab

Hearing date:

On the Papers

Date of Last Submission:

30 April 2020

Delivered at:

Melbourne

Delivered on:

21 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr T Puckney

Solicitors for the Applicant:

Mr J Schepis

Counsel for the Respondent:

Mr A Combes

Solicitors for the Respondent:

Irvine Lawyers

ORDERS

The application filed on 26 September 2019 be dismissed.
Any application for costs must be filed and served by way of submissions which should include the quantum of costs, with such submissions to be filed by 4.00pm on 4 September 2020, and to consist of no more than two A4 pages.
Any response to the application for costs must be filed and served by way of submissions by 4.00pm on 11 September 2020 and to consist of no more than 2 A4 pages.
The judgment be reserved on the question of costs after 12 September 2020 and be determined on the papers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1888 of 2019

MR SARBER

Applicant

And

MS TACOMA

Respondent

REASONS FOR JUDGMENT

Introduction

This decision considers an application by Mr Sarber (the applicant) to set aside orders made by Her Honour Judge Bender on 5 August 2019 (‘the August Orders’) relating to a final adjustment of property interests. The August Orders were made under the assumption that both parties consented to them. Mr Sarber submits that when making the August Orders in Chambers, the Court lacked both jurisdiction and his consent.
Pursuant to Orders made on 9 December 2019 by Her Honour Judge Bender, the discrete issue of whether the August Orders should be set aside was fixed for hearing on 9 April 2020. The parties agreed to the matter being be determined upon submissions without cross examination.
The hearing on 9 April 2020 was vacated in response to the COVID-19 pandemic and pursuant to Orders made 1 April 2020 and at the request of the parties, it was directed that the matter be determined in Chambers.

Background

On 22 February 2019, Ms Tacoma (the respondent) initiated proceedings seeking an adjustment of property interests as a result of an alleged de facto relationship with Mr Sarber. Ms Tacoma deposed to having lived in Mr Sarber’s home between early 2006 and late 2018, and that the parties lived together on a genuine domestic basis.
On…

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 SARBER & TACOMA

Details

AGLC: SARBER & TACOMA [2020] FCCA 2310
Case: [2020] FCCA 2310
Decision Date: 21 August 2020

CaseChat Overview and Summary

In the Family Court of Australia, Judge McNab considered an application by SARBER to set aside final property orders. SARBER alleged that the final orders were not made by consent and that their entry constituted a miscarriage of justice. The central dispute revolved around whether the Court possessed the jurisdiction to make the orders in the first place.

The primary legal issue before the Court was to determine whether the final orders had been validly made by consent. This required an examination of the circumstances surrounding the purported agreement and entry of the orders, and whether any vitiating factors, such as a lack of true consent or a fundamental error, had occurred. Consequently, the Court had to ascertain if it retained jurisdiction to entertain SARBER's application to set aside those orders.

Judge McNab dismissed SARBER's application. The Court found that the evidence did not support the assertion that the orders were not made by consent, nor that their entry constituted a miscarriage of justice. The Court concluded that it had jurisdiction to make the orders as they were entered. The Court then reserved judgment on the question of costs, directing the parties to file written submissions regarding quantum and any response by specific dates.

Orders

Orders of the court

The application filed on 26 September 2019 be dismissed.

Any application for costs must be filed and served by way of submissions which should include the quantum of costs, with such submissions to be filed by 4.00pm on 4 September 2020, and to consist of no more than two A4 pages.

Any response to the application for costs must be filed and served by way of submissions by 4.00pm on 11 September 2020 and to consist of no more than 2 A4 pages.

The judgment be reserved on the question of costs after 12 September 2020 and be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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