Taffa & Taffa (Summary Dismissal) - [2012] FamCA 181

FAMILY COURT OF AUSTRALIA

TAFFA & TAFFA (SUMMARY DISMISSAL)

[2012] FamCA 181

FAMILY LAW – SUMMARY DISMISSAL – Whether wife’s case is doomed to fail – whether wife’s case is not inherently incredible – the evidence on which the application is to be determined
FAMILY LAW – STAY APPLICATION – Whether Australia is a clearly inappropriate forum – Where parties live in Australia on means-tested pensions – Where all property in matter is located in Lebanon – Where the existence of property is disputed – Where parties have a judgment from Lebanese Courts – Whether Lebanese Courts have jurisdiction to decide such matters – Whether an Australian decision would be enforceable in Lebanon
FAMILY LAW – RES JUDICATA – Miller and Caddy test - Whether the wife is estopped from bringing an action here by her previous applications in Lebanon – whether the foreign declaratory judgment meets the requirements of a foreign judgment
FAMILY LAW – APPLICATION TO BRING FINANCIAL APPLICATION OUT OF TIME – section 44(4) - Where one party was in doubt as to the date of separation – where there is no evidence of parties’ financial position at the time the period in which an application could be brought ran out – where there is no evidence of assets or resources to meet any financial order

Family Law Act (1975) (Cth)
Family Law Rules (2004) (Cth)
Foreign Judgments Act 1991 (Cth)

Baumgartner & Baumgartner (1987) HCA 59
Beck & Beck (2004) FLC ¶93-181
Cain & Cain (1987) FLC ¶91-808
Calvery & Green (1984) HCA 81
Carl Zeizz Stiftung v Rayner & Keelr Ltr (No 2) [1967] AC 853
Gitane & Velacruz [2007] Fam CA 183
Hall & Hall (1979) FLC ¶90-679
Hedley & Hedley (2009) FLC ¶93-413
Henry & Henry (1996) 20 Fam LR 171
Kemeny & Kemeny (1998) FLC ¶92-806
Lindon & Commonwealth (No. 2) (1996) 136 ALR 251
MarginstonvBlackburn Borough Council [1939] 2 KB 426
Miller and Caddy 10 Fam LR 858
Pagliotti & Hartner (2009) FLC ¶93-393
Savage and Hodgson (1982) FLC ¶91-281
Tamaniego & Tamaniego [2010] FamCAFC 254
Voth v Manildra Flour Mills (1990) 171 CLR 538

APPLICANT:

Mr Taffa

RESPONDENT:

Mrs Taffa

FILE NUMBER:

SYF

5067

2000

DATE DELIVERED:

13 March 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

26 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Finn

Legal Aid NSW

SOLICITOR FOR THE RESPONDENT:

Mr Barber

Barber Lawyers

Orders

The wife’s application for property orders and lump sum spousal maintenance is stayed.
In the alternate to order (1) hereof the wife’s application to commence property and spouse maintenance proceedings out of time is dismissed.
I note that the matter has now concluded in the Court and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

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 Taffa & Taffa (Summary Dismissal)

Details

AGLC: Taffa & Taffa (Summary Dismissal) [2012] FamCA 181
Case: [2012] FamCA 181
Decision Date: 13 March 2012

CaseChat Overview and Summary

In the matter of *Taffa & Taffa*, the wife sought property orders and lump sum spousal maintenance. The court was required to determine whether to grant the wife's application to commence these proceedings out of time, or alternatively, to stay her application.

The central legal issue before Justice Le Poer Trench was the wife's ability to proceed with her claims for property orders and spousal maintenance given the expiry of the statutory time limits. The court had to consider the merits of her application to extend time and the appropriate course of action in light of the circumstances.

Justice Le Poer Trench ordered that the wife's application for property orders and lump sum spousal maintenance be stayed. In the alternative, the court dismissed the wife's application to commence property and spouse maintenance proceedings out of time. Consequently, all outstanding applications were dismissed, and the matter concluded in the Court.

Orders

Orders of the court

The wife’s application for property orders and lump sum spousal maintenance is stayed.

In the alternate to order (1) hereof the wife’s application to commence property and spouse maintenance proceedings out of time is dismissed.

I note that the matter has now concluded in the Court and all outstanding applications are dismissed.

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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