VUKOJA & VUKOJA - [2020] FamCA 614

FAMILY COURT OF AUSTRALIA

VUKOJA & VUKOJA

[2020] FamCA 614

FAMILY LAW – PRACTICE AND PROCEDURE – Where application for adjournment of undefended hearing – Where applicant had failed to comply with previous orders and directions – Where application refused.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vukoja

RESPONDENT:

Mr Vukoja

FILE NUMBER:

PAC

129

2018

DATE DELIVERED:

16 June 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere

SOLICITOR FOR THE APPLICANT:

Nikola Velcic & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Putrus

Orders Made on 16 June 2020

The Application by the Respondent husband to vacate the undefended hearing is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vukoja & Vukoja has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 129 of 2018

Ms Vukoja

Applicant

And

Mr Vukoja

Respondent

EX TEMPORE REASONS FOR JUDGMENT

In this matter the applicant mother filed an Initiating Application on 16 October 2019 seeking both final and interim orders in relation to the three children of the parties’ relationship.
Those children are presently aged eight, six and three, and have remained in the primary care of the mother since the parties’ separation in early 2017. By way of context, the parties commenced cohabitation at the time of their marriage in 2010 and separated in 2017.
The mother’s Initiating Application came before a Registrar of this Court for directions on 9 December 2019. It was noted on that date that the respondent husband was served with the mother’s application on 20 October 2019, sometime before the matter came before the Registrar.
The husband at that time was in occupation of the matrimonial home that had been transferred to the applicant pursuant to property orders made by consent in January 2018, with those property orders now the subject of an application by the husband’s trustee in bankruptcy to be set aside under section 79A of the Family Law Act 1975 (Cth) (“the Act”).
The Registrar on 9 December 2019 ordered the husband to file and serve his Response, a Financial Statement and affidavit by 9 January 2020. The matter was then adjourned for further directions on 16 January 2020 in respect to the mother’s interim application for interim parenting orders.
On 16 January 2020, the interim application came before the Court in the Registrar’s judicial list callover. The mother was represented by her solicitor and there was no…

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 VUKOJA & VUKOJA

Details

AGLC: VUKOJA & VUKOJA [2020] FamCA 614
Case: [2020] FamCA 614
Decision Date: 16 June 2020

CaseChat Overview and Summary

The case of *Vukoja & Vukoja* concerned a dispute between the parties, who were the registered proprietors of adjoining properties. The plaintiffs sought an injunction to restrain the defendants from continuing to trespass on their land and to remove an encroaching retaining wall. The matter came before Foster J in the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendants' retaining wall, which encroached onto the plaintiffs' property, constituted a trespass, and if so, what remedy was appropriate. The court was required to consider the principles of trespass to land and the equitable remedies available, particularly in circumstances where a structure encroaches on neighbouring property.

Foster J found that the defendants' retaining wall did indeed constitute a trespass upon the plaintiffs' land. His Honour applied the established legal principle that any unauthorised physical intrusion onto the land of another is a trespass. While acknowledging the potential for hardship to the defendants, the court determined that the plaintiffs were entitled to an injunction requiring the removal of the encroaching structure. The court reasoned that the right to exclusive possession of one's land was a fundamental proprietary right, and that the encroachment, however minor, was a continuing infringement of that right. The court rejected arguments that the encroachment was trivial or that damages would be an adequate remedy, emphasizing the importance of upholding property rights.

The court ordered that the defendants remove the encroaching retaining wall within a specified period and pay the plaintiffs' costs of the proceedings.

Orders