Kanelos and Kanelos and Ors - [2017] FamCA 1026

FAMILY COURT OF AUSTRALIA

KANELOS & KANELOS AND ORS

[2017] FamCA 1026

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband, second and third respondents failed to appear – Where the wife made an application for the proceedings to continue despite the absence of those parties – Consideration of fairness – Court finds that the proceedings should continue despite the absence of the husband, second and third respondents.

Family Law Rules 2004 (Cth) r 15.41

Woolley v Grace Worldwide (Australia) Pty Ltd [2015] QCAT 461

APPLICANT:

Ms Kanelos

RESPONDENT:	Mr Kanelos
SECOND RESPONDENT:	Mr T Kanelos
THIRD RESPONDENT:	Ms U Kanelos

INTERVENOR:

Mr Sellers as the Trustee In Bankruptcy

FILE NUMBER:

SYC

6320

2013

DATE DELIVERED:

13 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

13 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

No appearance for the Respondent

No appearance for the Second Respondent

No appearance for the Third Respondent

COUNSEL FOR THE INTERVENOR:

Mr Wilkinson

SOLICITOR FOR THE INTERVENOR:

Brown Wright Stein Lawyers

Orders

THE COURT ORDERS THAT:

That the hearing continue despite the absence of the Respondent, the Second Respondent and the Third Respondent.
The Intervenor representing Mr Sellers as Trustee in Bankruptcy is excused from attending the final hearing.
The third party creditor Z Holdings is excused from further attendance at the final hearing.

AND THE COURT ORDERS BY CONSENT THAT:

On or before 9:00am Thursday, 15 November 2017 Z Holdings Pty Ltd ("The Company") will comply with the Subpoena.
On or before 4:00pm Monday, 13 November 2017, The Company be provided with paragraphs of the Wife's Affidavit referrable to The Company.
On or before 4:00pm 1 December 2017 The Company file any evidence upon which it wishes to rely.
On or before 4:00pm 6 December 2017 the Wife and The Company provide notice as to whether any party is required for cross-examination.
If no person is required for cross-examination then the Wife and The Company shall file written submissions by 15 December 2017.
If cross-examination is required the Wife and The Company shall send a joint letter to the Judge's Associate to relist the matter.
The parties have liberty to relist the matter.

AND THE COURT NOTES THAT:

A.The matter was called three times outside of Court today and there was no appearance for the Respondent, the Second Respondent or the Third Respondent.
B.Orders 4 to 10 herein were made with the consent of the Applicant wife and Z Holdings, and on that basis Z Holdings made an application to be excused from further attendance at the final hearing.

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 Kanelos & Kanelos and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of…

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.

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Details

Case: [2017] FamCA 1026
Decision Date: 13 November 2017

CaseChat Overview and Summary

In the matter of *Kanelos and Kanelos and Ors*, McClelland J of the Supreme Court of New South Wales was required to make orders concerning the continuation of a hearing and the conduct of subsequent proceedings. The primary dispute involved the Applicant wife and absent Respondents, with Z Holdings Pty Ltd ("The Company") participating as a third-party creditor.

The court was tasked with determining whether the hearing should proceed in the absence of the Respondent, the Second Respondent, and the Third Respondent. Additionally, the court needed to consider applications to excuse the Intervenor representing Mr Sellers as Trustee in Bankruptcy and the third-party creditor Z Holdings from further attendance at the final hearing, and to make consequential orders regarding the production of evidence and submissions.

McClelland J ordered that the hearing would continue despite the absence of the Respondent, the Second Respondent, and the Third Respondent. The court also excused the Intervenor and Z Holdings from further attendance at the final hearing. These decisions were made in conjunction with a series of consent orders agreed between the Applicant wife and Z Holdings, which established a timetable for Z Holdings to comply with a subpoena, provide relevant affidavit paragraphs to Z Holdings, file evidence, and provide notice regarding cross-examination. The consent orders also stipulated the procedure for filing written submissions or relisting the matter if cross-examination was required.

Orders

Orders of the court

THE COURT ORDERS THAT:

That the hearing continue despite the absence of the Respondent, the Second Respondent and the Third Respondent.

The Intervenor representing Mr Sellers as Trustee in Bankruptcy is excused from attending the final hearing.

The third party creditor Z Holdings is excused from further attendance at the final hearing.

AND THE COURT ORDERS BY CONSENT THAT:

On or before 9:00am Thursday, 15 November 2017 Z Holdings Pty Ltd ("The Company") will comply with the Subpoena.

On or before 4:00pm Monday, 13 November 2017, The Company be provided with paragraphs of the Wife's Affidavit referrable to The Company.

On or before 4:00pm 1 December 2017 The Company file any evidence upon which it wishes to rely.

On or before 4:00pm 6 December 2017 the Wife and The Company provide notice as to whether any party is required for cross-examination.

If no person is required for cross-examination then the Wife and The Company shall file written submissions by 15 December 2017.

If cross-examination is required the Wife and The Company shall send a joint letter to the Judge's Associate to relist the matter.

10.

The parties have liberty to relist the matter.

AND THE COURT NOTES THAT:

A. The matter was called three times outside of Court today and there was no appearance for the Respondent, the Second Respondent or the Third Respondent.

B. Orders 4 to 10 herein were made with the consent of the Applicant wife and Z Holdings, and on that basis Z Holdings made an application to be excused from further attendance at the final hearing.

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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