Zan and Zaro - [2019] FamCA 143

FAMILY COURT OF AUSTRALIA

ZAN & ZARO

[2019] FamCA 143

FAMILY LAW – INJUNCTIONS – where the husband seeks to set aside orders made ex parte in his absence – where the Court discharges the injunctions made against the husband, where the wife is to continue to have sole use and occupation of the former matrimonial home and sole and exclusive use of a motor vehicle.

Family Law Act 1975 (Cth)

Zaro & Zan [2019] FamCA 4
Seiling & Seiling (1979) FLC 90-627
Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd[2005] FCA 955
Auricchio & Auricchio and Ors (No. 2) [2014] FamCA 240

APPLICANT:

Ms Zan

RESPONDENT:

Mr Zaro

FILE NUMBER:

BRC

2137

2018

DATE DELIVERED:

15 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

11 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B Dodd

SOLICITOR FOR THE APPLICANT:

Michael Lynch Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Graeme Richardson SC and Mr P Hackett

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

That upon the Undertaking of the husband filed 11 February 2019:

That Orders 6, 7 and 10 made 8 March 2018 are discharged.
That the words “notwithstanding the provisions of Orders 6 and 7 above” are removed from Order 8 with the intent that Order 8 remain in full force and effect on an interim basis.
That Order 9 made 8 March 2018 remain in full force and effect on an interim basis.
That Orders 12 and 13 made 8 March 2018 having been put into effect, the wife shall have sole and exclusive use of Motor vehicle 1 and be responsible for costs of registration, insurance and maintenance pending further order.
That the costs of the interim hearing on 11 February 2019 are reserved.
That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 April 2019 in the Family Court of Australia at Brisbane, when further orders and directions for discovery, valuations and case management will be considered, if not otherwise agreed.

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 Zan & Zaro 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

FILE NUMBER: BRC 2137 of 2018

Ms Zan

Applicant

And

Mr Zaro

Respondent

REASONS FOR JUDGMENT

Introduction

On 8 March 2018, the Court made ex parte orders in respect of parenting and financial issues arising from the wife’s, Ms Zan, Initiating Application filed 28 February 2018.
Subsequently, the husband Mr Zaro filed…

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 Zan and Zaro

Details

AGLC: Zan and Zaro [2019] FamCA 143
Case: [2019] FamCA 143
Decision Date: 15 March 2019

CaseChat Overview and Summary

In the matter of Zan and Zaro, Baumann J of the Family Court of Australia considered an application concerning interim orders in family law proceedings. The dispute involved the parties' property and the continuation or discharge of existing orders made on 8 March 2018.

The primary legal issue before the court was the extent to which certain interim orders should be discharged or maintained pending further determination of the proceedings. Specifically, the court was required to decide whether to discharge orders 6, 7, and 10, modify order 8, and confirm the continued operation of order 9. The court also had to address the disposition of a motor vehicle and the allocation of costs for the interim hearing.

Baumann J's decision was based on an undertaking provided by the husband, filed on 11 February 2019. The court ordered the discharge of orders 6, 7, and 10, and the removal of specific wording from order 8, allowing order 8 to remain in effect on an interim basis. Order 9 was also confirmed to remain in full force and effect on an interim basis. Furthermore, the court ordered that the wife have sole and exclusive use of a specified motor vehicle, with responsibility for its associated costs, pending further order. The costs of the interim hearing were reserved, and the proceedings were adjourned for a case management hearing to consider further directions.

Orders

Orders of the court

That upon the Undertaking of the husband filed 11 February 2019:

That Orders 6, 7 and 10 made 8 March 2018 are discharged.

That the words “notwithstanding the provisions of Orders 6 and 7 above” are removed from Order 8 with the intent that Order 8 remain in full force and effect on an interim basis.

That Order 9 made 8 March 2018 remain in full force and effect on an interim basis.

That Orders 12 and 13 made 8 March 2018 having been put into effect, the wife shall have sole and exclusive use of Motor vehicle 1 and be responsible for costs of registration, insurance and maintenance pending further order.

That the costs of the interim hearing on 11 February 2019 are reserved.

That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 April 2019 in the Family Court of Australia at Brisbane, when further orders and directions for discovery, valuations and case management will be considered, if not otherwise agreed.

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

Background

Background to the litigation

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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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