Tizani and Tizani (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIZANI & TIZANI (No.2) [2016] FCCA 126

Catchwords:
FAMILY LAW – Application for summary dismissal of Husband’s section 79A application – husband claims property settlements based on false information – in the alternative Wife seeks security for costs – both applications dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.79A, 117
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth), r.13.10

Adult Guardian & Mother’s Parents & B & Child’s Representative (2002) FLC 93-116
Ebner & Pappas [2014] FamCAFC 229

Ferrall & Blyton (2000) FLC 93-054
Jones & Jones (2001) FLC 93-080
Lindon & Commonwealth Bank of Australia (No.2) (1996) 136 ALR 251
Luadaka & Luadaka (1998) FLC 92-830
Sawer & Sawer [2007] FamCA 140
Sullivan & Tyler [2015] FamCAFC 167
Sutton & Sutton & Anor [2012] FamCA 454

Zhai & Juan [2014] FamCAFC 234

Applicant: MR TIZANI

Respondent: MS TIZANI

File Number: SYC 7993 of 2007

Judgment of: Judge Sexton

Hearing date: 1 October 2015

Date of Last Submission: 1 October 2015

Delivered at: Sydney

Delivered on: 25 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Alexander

Solicitors for the Applicant: Mark Rahme & Associates

Solicitors for the Respondent: Browns The Family Lawyers

THE COURT ORDERS THAT:

1. The Wife’s Application in a Case filed on 7 April 2015 be dismissed.

2. No order for costs.

3. The matter be listed for mention before me at 9.30 a.m. on 2 February 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7993 of 2007

MR TIZANI

Applicant

And

MS TIZANI

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Husband seeks orders pursuant to s.79A(1)(a) and (b) of the Family Law Act 1975 (Cth) to set aside property orders made on 20 February 2008 and 21 April 2011, and seeks substituted s.79 orders for property adjustment.

2. These proceedings concern the Wife’s Application in a Case for summary dismissal of the Husband’s Application, or in the alternative, for an order for the Husband to pay $50,000 to the Wife’s solicitor’s trust account by way of security for costs, and a stay of the s.79A proceedings pending the payment sought.

3. The Husband seeks the dismissal of the Wife’s Application in a Case.

4. Each party seeks costs.

Background

1. At the time of hearing, the Wife was 45 years of age, and the Husband 48 years of age. The parties commenced cohabitation at the date of their marriage in (country omitted) in (omitted) 1986. They disagree as to the date of their separation. The Husband says that final separation occurred on approximately 30 April 2013, and that the parties lived separately under the one roof until the Wife changed the locks and excluded him from the home in July 2013.  The Wife asserts that separation occurred in June 2007, and that the parties lived separately under the one roof until the Husband moved…