TAHEMA & TAHEMA (No.2) - [2021] FCCA 634

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAHEMA & TAHEMA (No.2)

[2021] FCCA 634

Catchwords:

FAMILY LAW – Application by Wife under Rule 16.05 of the Federal Circuit Court Rules 2001 to set aside Property Orders made in her absence - Orders made.

Legislation:

Family Law Act 1975 (Cth), s 75(2)

Federal Circuit Court Rules 2001, rule 16.05

Cases cited:

Malak & Malak [2016] FamCAFC 114

Weir & Weir (1993) FLC 92-338

Applicant:

MS TAHEMA

Respondent:

MR TAHEMA

File Number:

PAC 5860 of 2016

Judgment of:

Judge Newbrun

Hearing date:

22 September 2020

Date of Last Submission:

10 March 2021

Delivered at:

Parramatta

Delivered on:

30 March 2021

REPRESENTATION

Solicitors for the Applicant:

Stacks Law Firm

Solicitors for the Respondent:

Fox Taylor Mildwaters

ORDERS PENDING FURTHER ORDER

Pursuant to Rule 16.05(2)(a) of this Court’s Rules, the Court’s property related Orders of 10 May 2019, made in the absence of the Wife, are set aside.
The proceeding are adjourned for mention to 5 July 2021at 9:30am.
Permission is granted for the parties and their solicitors to appear via telephone.

NOTATION:

A.The Parties have agreed to attend upon mediation with Mr G on or before 31 ~~March~~ May 2021.
B.These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules to show in Notation A, “May” in lieu of “March”.

IT IS NOTED that publication of this judgment under the pseudonym Tahema & Tahema (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5860 of 2016

MS TAHEMA

Applicant

And

MR TAHEMA

Respondent

REASONS FOR JUDGMENT

This is the determination of the Wife’s Application in a Case filed 18 December 2019 seeking an Order pursuant to Rule 16.05(2)(a) of this Court’s Rules that the Court’s property related Orders of 10 May 2019, made in the absence of the Wife, be set aside. The Wife’s application is opposed by the Husband.

Material relied upon

The Wife relies upon the material set out on page 2 of her Outline of submissions filed 11 September 2020, and those submissions.
The Husband relies upon the material set out on pages 2 and 3 of his Outline of Submissions filed 14 October 2020, and those submissions.
The Wife relies upon her Reply to the Husband’s Outline of submissions filed 20 October 2020.

Legal Principles:

Rule 16.05 of the Federal Circuit Court Rules 2001 provides as follows:
(1)The Court may vary or set aside a Judgment or Order before it has been entered.
(2)The Court may vary or set aside a Judgment or Order after it has been entered if:
(a)the Order is made in the absence of a party; or
(3)This Rule does not affect the power of the Court to vary or terminate the operation of an Order by a further Order.
The Court refers to the decision in Malak & Malak [2016] FamCAFC 114 where the Full Court stated at [57]:
57. In Barbey & Tuttle (2013) FLC 93-534 the…

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 TAHEMA & TAHEMA (No.2)

Details

AGLC: TAHEMA & TAHEMA (No.2) [2021] FCCA 634
Case: [2021] FCCA 634
Decision Date: 30 March 2021

CaseChat Overview and Summary

In *TAHEMA & TAHEMA (No.2)*, the wife applied to Newbrun J of the Federal Circuit Court of Australia seeking to set aside property orders that had been made in her absence.

The central legal issue before the Court was whether the wife had established sufficient grounds to justify setting aside the previously made property orders pursuant to Rule 16.05 of the *Federal Circuit Court Rules 2001*. This rule permits the setting aside of judgments or orders in certain circumstances, including where a party has not been present at the hearing at which the orders were made.

Newbrun J considered the wife's explanation for her absence from the hearing and the merits of her application to set aside the orders. The Court applied the principles governing applications to set aside orders made in a party's absence, which typically involve demonstrating a meritorious defence or a substantial reason for the absence, and that the application is brought promptly. The Court's reasoning focused on whether the wife had provided a satisfactory explanation for her failure to attend the hearing and whether it was in the interests of justice to grant her application.

The Court ultimately made orders in relation to the wife's application.

Orders