Mansour & Kaleel - [2024] FedCFamC2F 106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mansour & Kaleel [2024] FedCFamC2F 106

File number(s): PAC 5559 of 2022

Judgment of: JUDGE NEWBRUN

Date of judgment: 1 February 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – application dismissed.

Cases cited:
Australian Securities and Investments Commission v Rich (2006) 235 ALR 587

Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240

Sweep & Sweep [2018] FamCAFC 228

Division: Division 2 Family Law

Number of paragraphs: 31

Date of hearing: 25 January 2024

Place: Parramatta

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr Strik

Solicitor for the Respondent: Jack Rigg Solicitors
ORDERS

PAC 5559 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KALEEL

Applicant

AND:
MR MANSOUR

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

1 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding filed 14 November 2023 is dismissed.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:

This is the determination of the wife’s Application in a Proceeding filed 14 November 2023 seeking leave of the Court to reopen the evidence in a final property hearing held on 12 and 13 October 2023 and in which judgment was reserved on 13 October 2023. This application is opposed by the husband.
The wife relies upon her affidavits filed 14 November 2023, 12 January 2024, and 23 January 2024.
The husband relies upon his Response to Application in a Proceeding filed 15 December 2023 and his supporting affidavit of the same date. He also relies upon his counsel’s Case Outline filed 25 January 2024.
Some brief background to the wife’s above application should be given.
The husband commenced proceedings in this Court through an Initiating Application for final orders filed 10 October 2022, in which he sought orders that two binding financial agreements be set aside, and he further sought property adjustment orders in the event that they were set aside. On 14 October 2022 he filed an Amended Initiating Application seeking similar orders.
On 23 November 2022 the wife filed a Response to Final Orders seeking declaratory relief…

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 Mansour & Kaleel

Details

AGLC: Kaleel & Mansour [2024] FedCFamC2F 106
Case: [2024] FedCFamC2F 106
Decision Date: 1 February 2024

CaseChat Overview and Summary

The case of Mansour & Kaleel involved the wife, who applied to the Family Court of Australia to reopen the evidence presented at the final hearing of her divorce proceedings. The husband opposed the application, and the court was tasked with determining whether the application should be granted. The wife's application was grounded on the assertion that new evidence had come to light that could potentially alter the outcome of the final hearing. This included evidence related to the husband’s financial dealings and possible concealment of assets.

The primary legal issue before the court was whether the wife's application met the criteria necessary to justify reopening the evidence presented at the final hearing. The court considered whether there was a substantial reason to reopen the evidence, such as new evidence that was not reasonably available at the time of the final hearing or a significant error in the previous proceedings. The court also evaluated whether reopening the evidence would lead to a just and equitable outcome for both parties.

The court dismissed the wife's application, finding that the evidence presented did not meet the stringent criteria required to justify reopening the final hearing. The court held that the wife had not demonstrated that the new evidence was not reasonably available at the time of the final hearing or that there was a significant error in the previous proceedings. Furthermore, the court concluded that reopening the evidence would not lead to a just and equitable outcome, as the new evidence did not materially alter the financial position of the parties or the outcome of the proceedings. The court emphasised the importance of finality in family law proceedings and the need to prevent unnecessary delay and expense.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The wife’s Application in a Proceeding filed 14 November 2023 is dismissed.

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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File number(s):	PAC 5559 of 2022
Judgment of:	JUDGE NEWBRUN
Date of judgment:	1 February 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – application in a proceeding – application to reopen evidence of final hearing – application dismissed.
Cases cited:	Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240 Sweep & Sweep [2018] FamCAFC 228
Division:	Division 2 Family Law
Number of paragraphs:	31
Date of hearing:	25 January 2024
Place:	Parramatta
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr Strik
Solicitor for the Respondent:	Jack Rigg Solicitors

PAC 5559 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KALEEL Applicant
AND:	MR MANSOUR Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	1 FEBRUARY 2024