Valdo & Samburg (No 2) - [2022] FedCFamC2F 340

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Valdo & Samburg (No 2) [2022] FedCFamC2F 340

File number(s): ADC 2100 of 2019

Judgment of: JUDGE McGINN

Date of judgment: 13 May 2022

Catchwords: FAMILY LAW – interlocutory application to set aside final property settlement order – final order made undefended whilst application for appointment of litigation guardian then pending but not determined – loss of opportunity to negotiate – enforcement application – in enforcement application litigation guardian appointment made – test to set aside not satisfied – application dismissed

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Law Court of Australia (Family Law) Rules 2021, Rule 10.03

Federal Circuit Court Rules 2001

Cases cited:
Allesch v Maunz [2000] HCA 40; 203 CLR 172; 74 ALJR 1206; 173 ALR 648; (2000) FLC 90-033; 26 Fam LR 237

Barbey & Tuttle (2013) FLC 93-534

Lane & Lane [2016] FamCAFC 53

Taylor v Taylor (1979) 143 CLR 1, (1979) FLC 90-674

Stead v State Government Insurance Commission (1986) 161 CLR 141

Division: Division 2 Family Law

Number of paragraphs: 90

Date of last submission/s: 22 March 2022

Date of hearing: 22 March 2022

Place: Adelaide

Counsel for the Applicant: Mr Lewis

Solicitor for the Applicant: Duncan Basheer Hannon

Counsel for the Respondent: Mr Lawton

Solicitor for the Respondent: Public Trustee (South Australia), Litigation Guardian for the Respondent
ORDERS

ADC 2100 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS VALDO

Applicant

AND:
MR SAMBURG

Respondent

ORDER MADE BY:

JUDGE McGINN

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:
1.That a copy of the reasons of the Court on 28 August 2020 as provided to each of the parties on 22 March 2022 be entered into evidence and marked as Exhibit 1.
2.That paragraph 1 of the Response to an Application in a Case sealed 15 March 2022 be dismissed.
3.That the Application in a Case sealed 3 March 2022 be adjourned to 9.30am on 1 July 2022 for directions as to listing that application for argument and any other directions.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Valdo & Samburg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN

In what is to be viewed…

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.

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Details

Case: [2022] FedCFamC2F 340
Decision Date

CaseChat Overview and Summary

In Valdo v Samburg, the court considered an application to set aside final property settlement orders made in the absence of the respondent. The orders were made in August 2020, and the applicant sought to enforce them in March 2021. A litigation guardian was appointed for the respondent in August 2021. The litigation guardian sought to set aside the property settlement orders on the basis that they constituted a miscarriage of justice. The applicant opposed the application, arguing that the orders were just and equitable and should not be disturbed. The court held that the respondent had not demonstrated that a different result would be achieved on a reconsideration of the property settlement question, and dismissed the application to set aside the orders. The court found that the respondent had not shown that he lacked capacity to participate in the proceedings in August 2020, and that the orders made in August 2020 were just and equitable. The court held that the failure to appoint a litigation guardian and to hear from such a litigation guardian at the hearing on 28 August 2020 did not constitute a miscarriage of justice, and that no different result had been demonstrated as likely to occur on a reconsideration. The court dismissed the application to set aside the orders and ordered that the application for enforcement be adjourned to 9.30am on 1 July 2022 for directions as to listing that application for argument and any other directions.

Orders