Valasco & Pellam

Case [2021] FedCFamC1A 70

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Valasco & Pellam [2021] FedCFamC1A 70

Appeal from:

Pellam & Valasco [2021] FCCA 988

Pellam & Valasco (No. 2) [2021] FCCA 1345
Appeal number(s): EAA 50 of 2021
EAA 75 of 2021
File number(s): PAC 6127 of 2018
Judgment of: ALDRIDGE J
Date of judgment: 19 November 2021
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the primary judge dismissed applications seeking to set aside a warrant for possession and consent orders – Allegations of forgery – Whether adequate notice was given to the appellant of the issue of a warrant for possession – Alleged collusion – No error is established – Findings of fact were open on the evidence – Appellant conceded he received notice – Where the appeals have no possibility of success – Leave to appeal refused – Appeals dismissed – Appellant to pay the respondent’s costs in a fixed sum.
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b)

Family Law Rules 2004 (Cth) Sch 3

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

Carr v Finance Corporation of AustraliaLtd(No. 1) (1981) 147 CLR 246; [1981] HCA 20

Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Number of paragraphs: 69
Date of hearing: 3 September 2021
Place: Sydney (via video link)
The Appellant: Self-represented litigant
Solicitor for the Respondent: Matthews Dooley & Gibson

ORDERS

EAA 50 of 2021
EAA 75 of 2021
PAC 6127 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR VALASCO

Appellant
AND:

MS PELLAM

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 26 August 2021 is dismissed.

2.The application for leave to appeal the orders made by the primary judge on 14 May 2021 be dismissed.

3.The application for leave to appeal the orders made by the primary judge on 18 June 2021 be dismissed.

4.The appellant pay the respondent’s costs fixed in the sum of $6,880.30.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this…

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Valasco & Pellam [2021] FedCFamC1A 70
Case
[2021] FedCFamC1A 70
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the validity of consent orders made in a property settlement following the separation of the appellant and the respondent. The primary dispute was whether the appellant had genuinely consented to the orders, particularly regarding the division of proceeds from the sale of their property and the payment of credit card debts. The case was heard and determined in the Family Court of Australia.

The legal issues that the court needed to decide included whether the appellant had effectively consented to the terms of the orders, whether the orders were fair and reasonable, and whether the appellant had been properly represented and advised at the time the orders were made. Additionally, the court had to consider whether the orders were "authentic" in light of the appellant's claims that certain terms were not agreed upon.

The court examined the evidence and submissions from both parties, including the appellant's affidavit and the reasons provided by the primary judge. It found that the appellant had indeed signed the orders and had been present in court when they were made. The court also determined that the orders were fair and reasonable, taking into account the circumstances of the case and the division of property. Regarding the appellant's claim that his lawyer had misrepresented the terms of the orders, the court held that there was no evidence to support this allegation. Consequently, the appeal was dismissed.

The court made no orders altering the consent orders made on 28 January 2020, affirming their validity and enforceability.

Orders

Orders of the court

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Background

Background to the litigation

Appeal No. EAA 75 of 2021 is against those orders.BACKGROUND In order to understand the appeals it is necessary to set out some key facts which are taken from the reasons of the primary judge and which are not challenged on appeal. The consent orders made on 28 January 2020 divided the parties’ property so that the respondent was to receive 65 per cent of the net proceeds of sale of the Suburb C property and the appellant 35 per cent. The parties’ share of the proceeds was to be paid to their lawyers in the first instance and not directly to them. Otherwise each party was to retain the assets in their possession. Importantly for the appeal, the orders provided for the wife’s credit card debts to be paid from the proceeds of sale before the division of the proceeds of sale. The sale did not proceed smoothly. On 20 October 2020, the respondent sought an order requiring the appellant to leave and not to re-enter the Suburb C property so it could be sold. That order was made on 9 November 2020. The appellant did not attend that hearing. On 11 December 2020 the respondent sought the issue of a warrant for possession of the Suburb C property and the forcible removal of the appellant from it. Those orders were made on 23 December 2020, again in the absence of the appellant. On 28 January 2021 the appellant filed an Application in a Case seeking that the orders made on 23 December 2020 be reviewed and that a lawyer be appointed to represent the appellant. On 29 January 2021 the appellant filed the application seeking to set aside the consent orders. The consent orders which were given to the Court cover three pages. The appellant accepts that his signature appears on the last page, headed “Certification of Orders”, but denies that the signature or initials, which could be “…”, the appellant’s first name, which appear on the first two pages, were placed there by him. At the time the orders were made, the appellant was represented by Mr B from G Law Firm. He appeared for the appellant at the time the orders were made. The appellant was also present in court. In his affidavit filed on 29 January 2021, the appellant alleged that:·Prior to a mediation which took place on 19 January 2020, Mr B advised him that, for the time being, only the Suburb C property should be the subject of settlement;·At the mediation he agreed to a division of that property so that the respondent received 65 per cent and he received 35 per cent;·At the hearing on 28 January 2020, the judge asked Mr B “why 20% of the sale proceeds from [his] portion shall go to [his] underage daughter” (paragraph 9);·When he confronted Mr B after the hearing, Mr B denied that the presiding judge said such a thing;·As the judge made the comment and because no such term was in the consent orders, they are not “authentic”; and·He never agreed to an order that the respondent’s credit cards be paid out of the proceeds of sale of the Suburb C property prior to division. The matter came before the primary judge on 15 February 2021 when it was adjourned to the following day. On that day the primary judge attempted to conduct the hearing by Microsoft Teams but came to the view that because of technical difficulties the hearing should be conducted in person. The matter was adjourned until 18 February 2021.

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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