Galani & Galani

Case [2021] FamCA 229

FAMILY COURT OF AUSTRALIA

Galani & Galani [2021] FamCA 229

File number(s): MLC13970 of 2020
Judgment of: WILLIAMS J
Date of judgment: 22 April 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Wife sought Summary Dismissal of Husband’s Application to set aside a sale of property where final orders were made in March 2017 – consideration of principles applicable to summary dismissal – application heard and determined in the absence of the applicant husband when no explanation provided why he could not appear on the date of hearing – husband called and telephoned by the court and no response – a order made for summary dismissal.
Legislation:

Family Law Act 1975 (Cth) s 45A

Family Law Rules 2004 (Cth) r 10.12

Cases cited:

Ebner & Pappas [2014] FamCAFC 229

Friar & Friar [2011] FamCAFC 71

Lindon v Commonwealth (No.2) [1996] HCA 14

Ritter & Ritter and Anor [2020] FamCAFC 86
Number of paragraphs: 67
Date of hearing: 13 April 2021
Place: Melbourne
Counsel for the Applicant: No Appearance
Solicitor for the Respondent: Ms Carson, Solicitor
Solicitor for the Respondent: Kennedy Guy

ORDERS

MLC13970 of 2020
BETWEEN:

MR GALANI

Applicant
AND:

MS GALANI
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

13 APRIL 2021

THE COURT ORDERS THAT:

1.The Initiating Application and Application in a Case both filed by the husband on 16 December 2020 are dismissed.

2.Any written submissions as to costs, which shall not exceed 5 pages, shall be filed and served within 28 days, with a copy to be emailed to the Associate to Justice Williams.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Galani & Galani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Williams J

INTRODUCTION

  1. This matter was listed for determination in the Judicial Duty List on 13 April 2021.

  2. The substantive proceeding, which is the subject of consideration, is the husband’s Initiating Application filed 16 December 2020 and the wife’s Response filed 15 March 2021. 

  3. In his application, the husband seeks that the sale of a property situated at B Street, Suburb C, which was sold pursuant to a contract of sale dated 21 August 2020, be set aside.

  4. The wife seeks that the husband’s Initiating Application should be summarily dismissed pursuant to rr 10.12(a), (c) and (d) of the Family Law Rules2004 (Cth), and that the husband pay her costs of the proceeding on an indemnity basis.

    BACKGROUND AND PROCEDURAL HISTORY

  5. There is a long and acrimonious history of litigation between the parties.

  6. On 24 March 2017, final orders were…

Continue reading Galani & Galani

Sign in free to access the full text

Details
AGLC
Galani & Galani [2021] FamCA 229
Case
[2021] FamCA 229
Decision Date

CaseChat Overview and Summary

In MLC13970 of 2020, Ms Galani (the wife) sought the summary dismissal of Mr Galani's (the husband) Initiating Application to set aside the sale of a property. The husband's application followed final property orders made in March 2017, which had been the subject of extensive prior litigation and appeals. The wife also sought costs on an indemnity basis.

The court was required to determine whether the husband's application to set aside the sale of the property should be summarily dismissed. This involved considering the principles applicable to summary dismissal under the Family Law Rules 2004 (Cth), particularly in circumstances where the applicant failed to appear at the hearing without explanation.

Williams J applied the principles of summary dismissal, noting that such applications are to be considered where there is no reasonable prospect of success or where the proceedings are an abuse of process. The husband's application was heard and determined in his absence, as he provided no explanation for his failure to appear on the scheduled hearing date, despite attempts by the court to contact him by telephone. The court found that the husband's application lacked merit and was an abuse of process, given the history of litigation and the finality of previous orders.

The court ordered the dismissal of the husband's Initiating Application and Application in a Case filed on 16 December 2020. The parties were also directed to file and serve written submissions regarding costs within 28 days.

Orders

Orders of the court

MLC13970 of 2020

BETWEEN:

MR GALANI

Applicant

AND:

MS GALANI

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

13 APRIL 2021

THE COURT ORDERS THAT:

1. The Initiating Application and Application in a Case both filed by the husband on 16 December 2020 are dismissed.

2. Any written submissions as to costs, which shall not exceed 5 pages, shall be filed and served within 28 days, with a copy to be emailed to the Associate to Justice Williams.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The wife seeks that the husband’s Initiating Application should be summarily dismissed pursuant to rr 10.12(a), (c) and (d) of the Family Law Rules2004 (Cth), and that the husband pay her costs of the proceeding on an indemnity basis. BACKGROUND AND PROCEDURAL HISTORY There is a long and acrimonious history of litigation between the parties. On 24 March 2017, final orders were made in the Federal Circuit Court of Australia in proceeding MLC7430/2015 by Judge Harland, disposing of the respective property applications of the parties (“the March 2017” Orders). The March 2017 Orders were amended on 12 April 2017 pursuant to the slip rule. On 24 November 2017, the husband appealed against the March 2017 Orders. On 6 April 2018, orders were made by the Honourable Justice Strickland dismissing both the husband’s Application in an Appeal and his Notice of Appeal. An Order was also made for the husband to pay the wife’s costs of and incidental to the appeal. On 2 July 2018, Orders were made by Judge Harland in the Federal Circuit Court, pursuant to an enforcement application of the wife, providing for the wife to have the sole conduct of the sale of a property situated at D Street, Suburb C, and for the husband to pay her costs. The March 2017 Orders provided for both the husband and the wife to sell the D Street property. On 11 October 2019, Orders were made by Judge Bender dismissing a Further Initiating Application filed by the husband on 13 August 2019, which sought to set aside and vary the final property Orders of March 2017. The Orders of 11 October 2019 also provided for the wife to have the sole conduct of the sale of a property situated at B Street, Suburb C and for the husband to pay her costs. On 8 November 2019, the husband filed a Notice of Appeal against the Orders made on 11 October 2019. On 9 April 2020, Orders were made by the Honourable Justice Strickland dismissing the husband’s Notice of Appeal and providing for the husband to pay the wife’s costs of the appeal. On 17 June 2020, Orders were made by Judge Bender, disposing of the wife’s enforcement application, which varied the March 2017 Orders, to provide for the husband’s removal from B Street, Suburb C. On 21 August 2020, the wife entered into a Contract of Sale for the B Street property. Settlement of the sale took place on in late 2020 and the wife’s entitlement to the proceeds of sale was distributed to her. There was some resistance by the husband to receiving his share of the proceeds of sale. On 16 December 2020, the husband filed an Initiating Application seeking to set aside the sale of B Street on the basis that it was not a bona fide sale and to enable him to have sufficient time to refinance the property, to pay the balance of monies owing to the wife. On 1 March 2021, the parties attended a Case Assessment Conference before Registrar Litterick. On that day orders were made adjourning the husband’s application to the Judicial Duty List on 13 April 2021 and procedural orders for the wife to file and serve a Response and affidavit. Notations to those orders were made as follows:AND IT IS NOTED THATA. The Registrar has recommended to the Applicant that he should obtain independent legal advice as a matter of priority.B. The Respondent asserts that the sale of the subject real property was completed in December 2020 and asserts that the Applicant has either failed or refused to take his share of the sale proceeds.C. The Respondent has foreshadowed that she will be seeking a summary dismissal and costs on an indemnity basis and the Applicant has indicated that this should have been filed previously along with a Financial Statement.D. This matter is not yet transferred to the Federal Circuit Court on the basis of the Respondent’s foreshadowed application and the listing of this matter on 13 April 2021.E. At the end of the Case Assessment Conference the Applicant started making inappropriate comments and submissions that were not relevant to the substantive issues and did not cease doing so when requested by the Registrar such that the Registrar muted the Applicant and informed him that the Registrar was concluding the Case Assessment Conference as the applicable case management issues had been addressed and the above orders/notations pronounced.HUSBAND’S FAILURE TO ATTEND ON 13 APRIL 2021

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.