WIFE SEEKS TO SET ASIDE PROPERTY ORDERS MADE WITHOUT HER PARTICIPATION ON ACCOUNT OF HEALTH PROBLEMS
Tahema & Tahema (No.2) [2021] FCCA 634 (30 March 2021)
Application by Wife under Rule 16.05 of the Federal Circuit Court Rules 2001 to set aside Property Orders made in her absence.
Facts:
On an undefended basis on 10 May 2019, the Court assessed the parties’ contributions to non-superannuation assets at trial date to be 10% to the Wife and 90% to the Husband.
The Wife has provided an adequate explanation for her failure to appear at the final hearing of the property proceedings. The medical certificate of Dr H, dated 8 July 2019 certifying that the Wife was unable to attend Court on 10 May 2019 due to severe back pain requiring hospitalization is supportive and consistent with the Wife’s above evidence relating to her state of health prior to the final hearing on 9 May 2019.
The Wife contends that by reason of the present medical evidence before the Court adduced by her, in conjunction with the Wife’s allegations in her draft Consolidated Affidavit, that there is an available argument that the Court would make a different finding in relation to the Wife’s capacity for employment.
Issue: Should the property orders be set aside?
Law:
Analysis:
The Court has regard to all the material before the Court adduced by the Wife in relation to her health and asserted non-capacity for employment. It has regard to her assertions of permanent incapacity for work and receipt of a disability support pension in conjunction with her allegations of ill health and her annexed medical related evidence including references to back surgery in 2018 and persisting back pain.
There is a material argument available to Wife that she has no capacity for employment. In such circumstances, if such argument is accepted, the Wife may achieve a not insignificant section 75(2) adjustment in her favour.
The Court is of the view that the Wife has real prospects of obtaining Orders for property adjustment in her favour significantly in excess of the property adjustment Orders.
Conclusion: Pursuant to Rule 16.05(2)(a) of this Court’s Rules, the Court’s property related Orders of 10 May 2019, made in the absence of the Wife, are set aside.
