Zabik and Zabik (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZABIK & ZABIK (No.2) [2017] FCCA 684

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Application to set aside orders – applicant undischarged bankrupt – application dismissed.

Legislation:

Federal Circuit Court Rules 2001, r. 16.05

Autodesk v Dyason [No 2](1993) 176 CLR 300

Wentworth v Woolhara Municipal Council (1982) 149 CLR 672
Wint v Medimobile Pty Ltd  [2016] FCCA 102

Applicant: MR ZABIK

Respondent: MS ZABIK

File Number: ADC 748 of 2012

Judgment of: Judge Young

Hearing date: 9 March 2017

Date of Last Submission: 9 March 2017

Delivered at: Adelaide

Delivered on: 9 March 2017

REPRESENTATION

The Applicant: In Person

Solicitor for the Respondent: Mr Jordan of Jordan & Fowler Barristers & Solicitors

ORDERS

1. That the Application in a Case filed by the husband on 2 December 2016 is dismissed.

2. That until further order the husband and his servants or agents are restrained from dealing with in any way his superannuation interest in (omitted) (formerly rolled out of (omitted) Super Fund).

3. That the husband do provide to the wife’s solicitors by 12.00pm on 10 March 2017 full particulars of his (omitted) Superannuation interest including all documents recording the rollover of that interest from (omitted) to (omitted) such documents to be provided by email to (omitted).

4. That the husband pay the wife’s costs of and incidental to the said Application in a Case fixed in the sum of Two Thousand Five Hundred Dollars ($2,500).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 748 of 2012

MR ZABIK

Applicant

And

MS ZABIK

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application by the respondent husband (I will call him that even though the parties are no longer married because it is convenient to refer to the parties as husband and wife) to set aside a property order made by me on 1 December 2016.  I made an order on that day in the absence of the husband after the matter had been set down for trial in the presence of the husband on 12 August 2016.  When I say “presence” I mean he appeared in person on that day. I take it that the application is made pursuant to rule 16.05 (2)(a) of the Federal Circuit Court Rules 2001 which refers to the Court’s power to set aside an order on various grounds, including if the order is made in the absence of a party.  The order I made on 1 December was made in the absence of the husband.

3. The power to set aside and rehear is to be exercised cautiously.  I was referred by counsel for the wife…