SRBINOVSKA & SRBINOVSKA & ANOR - [2014] FamCA 592

FAMILY COURT OF AUSTRALIA

SRBINOVSKA & SRBINOVSKA & ANOR

[2014] FamCA 592

FAMILY LAW – PROPERTY – Application to set aside Orders made by consent as between the First and Second Respondents – Where the Applicant has an interest in one of the real estate properties the subject of the Consent Orders – Orders made for these proceedings to be transferred to the Sydney Registry to join other proceedings on foot involving the parties

FAMILY LAW – COSTS – Application that the First and Second Respondents pay the Applicant’s costs jointly and severally on an indemnity basis, or alternatively on a party/party basis – Costs reserved

Family Law Act 1975 (Cth) ss 79, 79(10), 79A

Family Provision Act 1982 (NSW)

Byrne & Byrne (1965) 7 FLR 342
Gilbert v Estate of Gilbert (deceased) (1990) FLC 92-125
Kokl & Kokl (1981) FLC 91-078
McIntyre & McIntyre (1994) FLC 92-468
Patching & Patching (1995) FLC 92-585
Srbinovska& Srbinovska [2013] NSWSC 1491
Taylor & Taylor (1979) FLC 90-674

APPLICANT:

Mr S Srbinovska

FIRST RESPONDENT:

Mr R Srbinovska

SECOND RESPONDENT:

Ms A Srbinovska

FILE NUMBER:

PAC

1824

2013

DATE DELIVERED:

30 July 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

21 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bevan

SOLICITOR FOR THE APPLICANT:

One Group Legal Pty Limited

FIRST RESPONDENT:

No appearance

SECOND RESPONDENT:

No appearance

Orders

That compliance with any Family Law Rules 2004 (Cth) so as to facilitate the application being heard on an undefended basis is dispensed with.
That the Orders of 7 May 2013 in the proceedings PAC1824/2013 be set aside.
That the costs of the Applicant are reserved.
That this file (PAC1824/2013) be transferred to the Family Court of Australia, Sydney Registry to be consolidated with the proceedings SYC1484/2010.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Srbinovska & Srbinovska has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1824 of 2013

Mr S Srbinovska

Applicant

And

Mr R Srbinovska
First Respondent

And

Ms A Srbinovska
Second Respondent

REASONS FOR JUDGMENT

The application for determination seeks orders pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act” or “the Family Law Act”) to set aside Consent Orders as to property made pursuant to s 79 of the Act on 7 May 2013 between the Respondent husband and wife.
The application came before the Court on the 21 July 2014.
Documents relating to the present application were sent to the Respondents by email on 6 June 2014 and by express post to their residential address on the same day. There has been a long history of litigation between the parties.
There being no appearance by or on behalf of the Respondents and for reasons that will become apparent, compliance with any Family Law Rules (2004) (Cth) (“the Rules”) that would prevent the present application…

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.

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Details

AGLC: SRBINOVSKA & SRBINOVSKA & ANOR [2014] FamCA 592
Case: [2014] FamCA 592
Decision Date: 30 July 2014

CaseChat Overview and Summary

The proceedings involved an application by the Applicant to set aside consent orders made between the First and Second Respondents, where the Applicant claimed an interest in one of the properties subject to those orders. The matter came before Foster J of the Family Court of Australia.

The primary legal issue before the court was whether the consent orders made between the First and Second Respondents should be set aside, given the Applicant's asserted interest in a property affected by those orders. The court also considered the Applicant's application for costs against the First and Second Respondents, either on an indemnity or party/party basis, and the appropriate disposition of the file.

Foster J reasoned that the consent orders of 7 May 2013 in proceedings PAC1824/2013 should be set aside. The court also dispensed with compliance with certain Family Law Rules to facilitate the hearing of the application on an undefended basis. The court reserved its decision on costs, indicating that this aspect would be determined at a later stage.

The court ordered that the consent orders of 7 May 2013 in proceedings PAC1824/2013 be set aside. Furthermore, the court ordered that the file in PAC1824/2013 be transferred to the Family Court of Australia, Sydney Registry, to be consolidated with existing proceedings SYC1484/2010. The costs of the Applicant were reserved.

Orders

Orders of the court

That compliance with any Family Law Rules 2004 (Cth) so as to facilitate the application being heard on an undefended basis is dispensed with.

That the Orders of 7 May 2013 in the proceedings PAC1824/2013 be set aside.

That the costs of the Applicant are reserved.

That this file (PAC1824/2013) be transferred to the Family Court of Australia, Sydney Registry to be consolidated with the proceedings SYC1484/2010.

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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