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Ducatti and Tritton and Anor

Ducatti and Tritton and Anor

Case [2018] FamCA 979 6 November 2018

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FAMILY COURT OF AUSTRALIA

DUCATTI & TRITTON AND ANOR

[2018] FamCA 979

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the wife seeks an adjournment of the final hearing in the week prior to that listing – Where the husband and the Second Respondent oppose that adjournment – Where the parties have not yet obtained the ordered expert valuation reports in respect of real property contained in the matrimonial asset pool – Where the parties have not yet obtained the ordered Single Expert in respect of parenting matters – Where the parties have not yet filed and served their Affidavit material – Where the Court finds that the granting of an adjournment will cause detriment to the Respondents and the other litigants in this Court – Where the Court finds that this is counterbalanced by the importance of the parties properly putting their contentions to the Court at final hearing – Where the Court finds that the parties have not had the opportunity of clarifying the relevant expert reports, in terms of the procedures set out in the Family Law Rules 2004 – Adjournment granted.

Federal Court of Australia Act 1976 (Cth), s. 37M

Family Law Rules 2004 (Cth), r. 1.04

Gadde v Gadde [2015] FamCA 617
Hart v Deputy Commissioner of Taxation [2016] FCA 250
Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

APPLICANT:

Ms Ducatti

RESPONDENT:

Mr Tritton

INTERVENOR:

Mr E Tritton

FILE NUMBER:

SYC

6271

2016

DATE DELIVERED:

6 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland

HEARING DATE:

6 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

KD Holmes Solicitors

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

SOLICITOR FOR THE INTERVENOR:

York Law Family Law Specialists

Orders

THE COURT ORDERS THAT:

The hearing of this matter listed to commence on 15 November 2018 is adjourned, with the matter to be heard over six days, commencing on 3 June 2019 at 10:00am.
The parties pay their share of the Single Expert fees, by 30 January 2019.
The parties are to act in accordance with the Family Law Rules 2004, including in respect to time limits, in seeking any necessary clarification from the Single Experts, following receipt of their reports.
The Applicant and the First Respondent file and serve any Affidavits upon which they intend to rely, by 1 March 2019.
The Second Respondent file and serve any Affidavits upon which he intends to rely, by 14 March 2019.
The First Respondent’s Response to an Application in a Case filed on 6 November 2018 and the Second Respondent’s Response to an Application in a Case filed on 1 November 2018 be adjourned to 15 March 2019 at 10:00am, in respect to those parts of the respective applications where it is sought that the matter proceed undefended.
Costs of this application and costs thrown away by the adjournment are reserved.

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

IT IS…

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 Ducatti and Tritton and Anor

Details

AGLC: Ducatti and Tritton and Anor [2018] FamCA 979
Case: [2018] FamCA 979
Decision Date: 6 November 2018

CaseChat Overview and Summary

This matter concerned an application before McClelland J. The dispute involved the Applicant and the First and Second Respondents, with the specific nature of their disagreement not detailed in the provided text. The court's orders indicate a complex family law proceeding requiring significant preparation and expert input.

The court was required to determine the appropriate procedural steps and timelines for the ongoing litigation. This included setting a new hearing date, managing the payment of single expert fees, and establishing deadlines for the filing and service of affidavits by the parties. Furthermore, the court addressed specific aspects of the applications concerning whether the matter should proceed undefended.

McClelland J's reasoning, as evidenced by the orders, focused on ensuring a fair and efficient progression of the case. The court applied the Family Law Rules 2004 to govern the parties' conduct, particularly in relation to seeking clarification from single experts. The adjournment of the hearing and the reservation of costs indicate that the court considered the need for further evidence and submissions before making final determinations.

The court made several orders, including adjourning the hearing to commence on 3 June 2019, requiring parties to pay their share of single expert fees by 30 January 2019, and setting strict deadlines for the filing of affidavits. The court also adjourned specific parts of the applications concerning undefended proceedings to 15 March 2019, and reserved costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

The hearing of this matter listed to commence on 15 November 2018 is adjourned, with the matter to be heard over six days, commencing on 3 June 2019 at 10:00am.

The parties pay their share of the Single Expert fees, by 30 January 2019.

The parties are to act in accordance with the Family Law Rules 2004, including in respect to time limits, in seeking any necessary clarification from the Single Experts, following receipt of their reports.

The Applicant and the First Respondent file and serve any Affidavits upon which they intend to rely, by 1 March 2019.

The Second Respondent file and serve any Affidavits upon which he intends to rely, by 14 March 2019.

The First Respondent’s Response to an Application in a Case filed on 6 November 2018 and the Second Respondent’s Response to an Application in a Case filed on 1 November 2018 be adjourned to 15 March 2019 at 10:00am, in respect to those parts of the respective applications where it is sought that the matter proceed undefended.

Costs of this application and costs thrown away by the adjournment are reserved.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ducatti and Tritton and Anor [2018] FamCA 979

Most Recent Citation

GIUNTA & GIUNTA [2020] FamCA 453

Cases citing this decision · 3 of 3 shown

Lambard and Lambard & Ors
[2020] FamCA 789 Para 3

…riate to grant the adjournment. In so doing, I have considered the following relevant principles as summarised in the matter of Ducatti and & Tritton [2018] FamCA 979 at [14]-[18], as follows: 14. The relevant law in respect to adjournments generally has been set out in a number of cases. In Gadde v Gadde [2015] Fa…
RIMAC & RIMAC
[2020] FamCA 675 Para 1

…nst the efficiency of the litigation process, not only to the parties in these proceedings but also to other litigants. In Ducatti & Tritton and Anor [2018] FamCA 979, at [14]-[18], I summarised those relevant principles.…
GIUNTA & GIUNTA
[2020] FamCA 453 Para 2

…s as against the efficiency of the litigation process, not only to the parties in these proceedings but also to other litigants. In Ducatti & Tritton [2018] FamCA 979 at [14]-[18] I summarised those relevant principles.…

View all 3 citing cases →

Cases cited in this decision · 12 of 12 shown

Hart v Deputy Commissioner of Taxation
[2016] FCA 250 Para 15

…Also of relevance is a useful summary provided in the decision of Edelman J in Hart v Deputy Commissioner of Taxation [2016] FCA 250 (“ Hart’s case ”). In that case, his Honour referred to the decision of Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], where the Court said: In considering an…
Gadde & Gadde
[2015] FamCA 617 Para 14

…The relevant law in respect to adjournments generally has been set out in a number of cases. In Gadde v Gadde [2015] FamCA 617 at [18] to [22], I endeavoured to summarise relevant principles as follows: 18. In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed why an adjournment applica…
Luck v Chief Executive Officer of Centrelink
[2015] FCAFC 75 Para 15

…of Taxation [2016] FCA 250 (“ Hart’s case ”). In that case, his Honour referred to the decision of Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [42], where the Court said: In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be…
Nabers & Nabers
[2011] FamCAFC 145 Para 14

…ly”: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as referred to by the Full Court in Nabers & Nabers [2011] FamCAFC 145 at [51]. 21. However, it is a fundamental principle of justice that a person appearing before a court of law is given the opportunity of presenting mater…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 14

…onsiderable emphasis on the importance of dealing with cases expeditiously”: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, as referred to by the Full Court in Nabers & Nabers [2011] FamCAFC 145 at [51]. 21. However, it is a fundamental principle of justice that a person appe…
Noelle & Fournier
[2009] FamCA 328 Para 14

…sion is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145. 22. In that context, “proper consideration needs to be given to the particular disadvantages suffered by a self-repres…
Anton & Malitsa (No. 2)
[2009] FamCA 242 Para 14

…ideration of the resources of the Court, its rules and its management and also the need to consider justice for both parties: Anton & Malitsa (No. 2) [2009] FamCA 242. 19. Litigants, whether represented or unrepresented, should be aware that the time of a court is a public resource which must be managed effectively…
Allesch v Maunz
[2000] HCA 40 Para 14

…senting material and making submissions relevant to issues being considered by the court before a decision is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145. 22. In that contex…
Queensland v JL holdings Pty Ltd
[1997] HCA 1 Para 14

…v Gadde [2015] FamCA 617 at [18] to [22], I endeavoured to summarise relevant principles as follows: 18. In State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, Kirby J discussed why an adjournment application requires a balancing exercise to be undertaken. That exercise involves consideration of the resourc…
Sali v SPC Ltd
[1993] HCA 47 Para 14

…in the interests of not only the immediate litigants but also in the interests of other litigants waiting for their matters to be listed for hearing: Sali v SPC Ltd (1993) 116 ALR 625. 20. In that context, courts place “considerable emphasis on the importance of dealing with cases expeditiously”: Aon Risk Services Austr…
Gallo v Dawson
[1990] HCA 30 Para 14

…is not to say, however, that a self-represented litigant is entitled to any “privilege” over and above that of a represented litigant: Gallo v Dawson (1990) 93 ALR 479 per McHugh J.…
[1957] 2 QB 55
[1957] 2 QB 55 Para 14

…ng considered by the court before a decision is made by that court: Allesch v Maunz (2000) 203 CLR 172 at 184 – 85; Jones v National Coal Board [1957] 2 QB 55 at 67, Noelle & Fournier [2009] FamCA 328; Nabers & Nabers [2011] FamCAFC 145. 22. In that context, “proper consideration needs to be given to the particul…

Legislation cited in this decision · 3

Family Law Rules 2004 (Cth)
1.04 2 mentions (from Para 3)
Federal Court of Australia Act 1976 (Cth)
37M 2 mentions (from Para 16)
Family Law Act 1975 (Cth)
1 mention