Sykes and Sykes

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYKES & SYKES [2016] FCCA 1956

Catchwords:
FAMILY LAW – Property – section 79A application – elements not established – application dismissed.

Legislation:

Family Law Act 1975 s.79A

Cases cited:
Sykes & Sykes [2013] FamCA 922
Garden & Gavin (No.2) [2010] FamCAFC 125
Simpson & Hamlin (1984) Fam LR 1040

Applicant: MR SYKES

Respondent: MS SYKES

File Number: SYC 950 of 2009

Judgment of: Judge Boyle

Hearing date: 8 July 2016

Date of Last Submission: 8 July 2016

Delivered at: Wollongong

Delivered on: 9 August 2016

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant:

Counsel for the Respondent:

Solicitors for the Respondent: King Legal Pty Ltd

ORDERS

1. The husband’s application filed 1 July 2014 is dismissed.

2. The wife’s amended response filed 14 June 2016 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 950 of 2009

MR SYKES

Applicant

And

MS SYKES

Respondent

REASONS FOR JUDGMENT

Applications

1. The husband filed an initiating application on 1 July 2014, amended on 25 May 2016, seeking that property orders of 25 August 2010 be set aside. He seeks that $11,000 transferred from his (omitted) Super account be returned and that the wife pay to him $79,806.67. That is a sum equivalent to 80 per cent of the proceeds of sale of the former matrimonial home, less the amount the husband has already received. He further seeks that $1,644.50 in the Turner Freeman trust account be used to pay the balance owed to Ashley Smith & Partners, who sold the former matrimonial home on the parties’ behalf. Those orders are reflected in his case outline document. He relies on the affidavit he provided filed 25 May 2016.

2. The wife opposes the orders sought by the husband. In an amended response filed 14 June 2016, she sought orders for the husband’s application to be dismissed, orders with respect to payment of monies by solicitors Ashley Smith & Partners to the wife, including the whole of a sum incurred by her for storage costs. The wife sought orders relating to overseas travel for X and that the consent of the husband be dispensed with for the purposes of obtaining a passport and that leave be granted for the wife to file an application for parenting orders to be varied. The wife relied on a case outline, wherein orders broadly consistent with the response were contained.

3. On 1 April 2016 the matter was set down for hearing of the husband’s section 79A application. The husband has had limited opportunity to consider the amended response sought by the wife on 14 June 2016. No directions have been made with respect to the matter being dealt with on what is essentially a Rice & Asplund argument, without any indication of parenting orders sought and the issue of a passport for the parties’ child X.