Yazdi and Sayed

[2018] FamCA 166

FAMILY COURT OF AUSTRALIA

YAZDI & SAYED [2018] FamCA 166

FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Where the respondent seeks that the applicant’s case be summarily dismissed – Where the applicant is seeking that previous orders be set aside on the basis of s 90SN(1)(a) – Where the respondent seeks that the orders be varied – Where summarily dismissing the application will have little to no effect as a final hearing is requested by the respondent – Where the application is not summarily dismissed.

Family Law Act 1975 (Cth) ss 79A, 90SN(1)(a)

Pelerman & Pelerman (2000) FLC 93-037

Zhai & Juan [2014] FamCAFC 234

APPLICANT: Ms Yazdi

RESPONDENT: Mr Sayed

FILE NUMBER: SYC 380 of 2015

DATE DELIVERED: 20 March 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 15 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Alexanders Lawyers

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: John R Quinn & Co

Orders

1. That the application for summary dismissal of the amended application filed 11 August 2017 be dismissed.

2. That the matter be placed in a call-over for the allocation of trial dates on 16 April 2018 at 10.00 am.

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 Yazdi & Sayed 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 SYDNEY

FILE NUMBER: SYC 380 of 2015

Ms Yazdi

Applicant

And

Mr Sayed

Respondent

REASONS FOR JUDGMENT

1. On 23 January 2015, Mr Sayed (“the respondent”) filed an application in the Federal Circuit Court seeking a distribution of property arising out of a de facto relationship with Ms Yazdi (“the applicant”).

2. That application was ultimately listed for an ex parte hearing before Judge Scarlett on 15 June 2015.

3. In his reasons, the learned trial judge noted that the applicant had been served with the Initiating Application on 9 February 2015, that she did not appear in Court on the return date of 20 April 2015, and that she did not file documents even though an order was made on 20 April 2015 that she file a Financial Statement and an affidavit within 21 days and she was warned that the matter may proceed in her absence.

4. Orders were made which had the effect of requiring the sale of a unit at Suburb B (“the unit”) and the division of the net proceeds of sale as to 60 per cent to the respondent and 40 per cent to the applicant.

5. No appeal was filed against those…