FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Magnus & Sandri (No 3) [2024] FedCFamC1F 449
File number: SYC 3830 of 2019 Judgment of: HARPER J Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open following the conclusion of the final hearing – Where final judgment listed for delivery – Where husband filed application to re-open the day before the listing – Where husband sought to make changes to the balance sheet, including the inclusion of further tax liabilities – Where significant tax liabilities already included on balance sheet – Where additional tax liabilities sought to be included ought to have been reasonably anticipated at the final hearing – Where husband contended that he had experienced a change in circumstance that materially impacted his earning capacity – Where evidence of the circumstances impacting the husband’s earning capacity was before the Court at final hearing – Insufficient evidence to demonstrate a material change occurred – Where wife would suffer prejudice if the leave to re-open granted – Where husband sought to amend his proposed final orders and seek a superannuation splitting order – Where neither party sought a superannuation split at the final hearing – Where orders seeking superannuation split were open to the parties to advance at final hearing – Where application to re-open is antithetical to the overarching purpose and the interests of justice – Application dismissed – Costs ordered in favour of the wife.
FAMILY LAW – INTERIM PROPERTY – Where husband seeks to discharge interlocutory orders made on the last day of trial – Where husband contended he was unable to satisfy his ongoing financial obligations required by interim orders – Where interim orders would be discharged upon delivery of final judgment – Where husband has not demonstrated a material change in circumstances – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VIII, s 79(4)(e) and s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826
Brimaud v Honeysett Instant Print (1988) 217 ALR 44
Gelley and Gelley (No 1) (1992) FLC 92-290; [1992] FamCA 92
Joubert & Verhoeven [2020] FamCA 53
Liu v The Age Company Limited (2016) 92 NSWLR 679
Magnus & Sandri (No 2) [2024] FedCFamC1F 236
McDermott & McDermott [2016] FamCA 613
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Summitt & Summitt [2009] FamCA 365
Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471
Division: Division 1 First Instance Number of paragraphs: 59 Date of hearing: 23 July 2024 Place: Sydney Counsel for the Applicant: Mr Auld Solicitor for the Applicant: Abbott…
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- AGLC
- Magnus & Sandri (No 3) [2024] FedCFamC1F 449
- Case
- [2024] FedCFamC1F 449
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the application to reopen the final hearing should be granted, and whether the husband’s application to discharge interlocutory orders should be successful. The husband argued that he had experienced a change in circumstance that materially impacted his earning capacity and that he was unable to satisfy his ongoing financial obligations required by the interim orders. The court found that the husband had not demonstrated a material change in circumstances, and that the additional tax liabilities sought to be included ought to have been reasonably anticipated at the final hearing. The court also found that the evidence of the circumstances impacting the husband’s earning capacity was before the Court at the final hearing.
The court held that the husband’s application to reopen the final hearing was antithetical to the overarching purpose and the interests of justice. The court found that the husband had not provided a sufficient explanation for not calling the evidence-in-chief at the final hearing, and that the wife would suffer prejudice if the application was granted. The court also found that the husband had not demonstrated a material change in circumstances, and that the orders seeking a superannuation split were open to the parties to advance at the final hearing. The court dismissed the husband’s application to reopen the final hearing and to discharge the interlocutory orders.
The court ordered that the husband pay the wife’s costs of the application in a proceeding filed on 3 July 2024, as agreed or assessed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
SYC 3830 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR SANDRI
Applicant
AND:
MS MAGNUS
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
23 JULY 2024
THE COURT ORDERS THAT:
1. The Respondent Husband’s (“the husband’s”) Application in a Proceeding filed on 3 July 2024 is dismissed.
2. The husband pay the Respondent Wife’s costs of the Application in a Proceeding filed on 3 July 2024, as agreed or assessed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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
The High Court in Smith v New South Wales Bar Association observed at 265–266 that:It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected … The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the reopening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened ……It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised …(Footnotes omitted) (emphasis added) In Reid v Brett [2005] VSC 18, Habersberger J said:41.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows: (a) the further evidence is so material that the interests of justice require its admission;(b) the further evidence, if accepted, would most probably affect the result of the case;(c) the further evidence could not by reasonable diligence have been discovered earlier; and (d) no prejudice would ensue to the other party by reason of the late admission of the further evidence. …(Footnote omitted) In Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 at [18], Austin J outlined the matters to be considered by the court when considering an application to reopen including: a)The nature of the proceeding;b)Whether the occasion for calling the further evidence ought reasonably to have been foreseen;c)Considerations of fairness in respect of the defendant’s notice of the case they have to meet;d)The importance of the issues as to which the further evidence is sought to be adduced to the issues in the case;e)The degree of relevance and probative value of the further evidence;f)The prejudice to the defendant in terms of delay and the completion of the proceedings and consequential costs;g)The public interest in the timely conclusion of the litigation; andh)The explanation offered by the applicant for not having called the evidence-in-chief.