Massalski and Riley - [2018] FamCA 678

FAMILY COURT OF AUSTRALIA

MASSALSKI & RILEY

[2018] FamCA 678

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of final hearing – Where the matter has previously been listed for a final hearing which was adjourned – Where Counsel briefed for the wife is unwell and unable to appear on her behalf – Adjournment granted for shorter period than contemplated by application – Where the Court finds that such an adjournment provides sufficient time for new Counsel to be briefed.

Family Law Rules 2004 rr. 1.04, 10.06, 15.52
Federal Court of Australia Act 1976 (Cth) s. 37M

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Hart v Deputy Commissioner of Taxation [2016] FCA 250
St George Bank v Hammer (2015) NSWSC 957

APPLICANT:

Ms Massalski

RESPONDENT:

Mr Riley

FILE NUMBER:

SYC 496 of 2015

DATE DELIVERED:

27 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

27 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Boadicea Legal Services

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC

SOLICITOR FOR THE RESPONDENT:

Russell C Byrnes Solicitor

Orders

The hearing dates of 30 and 31 July 2018 are vacated.
The hearing will be conducted for three (3) days, commencing 1 August 2018.
The Respondent husband is to take such steps as he is reasonably able to obtain building plans for property known as D Street, Suburb E.
The husband is to arrange and pay for a drive-by valuation of the D Street property, which shall be provided to the solicitor for the wife by no later than 5:00 pm on Monday, 30 July 2018.
In so far as the wife wishes to challenge or verify the value of the drive by valuation, I grant permission, pursuant to Rule 15.52 of Family Law Rules 2004, for the wife to obtain her own independent valuation of the D Street property and to rely upon that valuation as that of an expert witness.
The parties’ costs of today be reserved.
Subject to order 8 herein, the parties have liberty to inspect all documents produced in accordance with subpoenas issued in these proceedings, to date.
The husband have the right of first inspection in relation to the subpoena documents referred to in order 7 herein, which is to be exercised prior to 5:00 pm on Monday, 30 June 2018, with a view to, if necessary, apportioning from those documents, documents that the husband contends infringe the privacy of a third party to the litigation or are otherwise oppressive.
In the event that there is a disagreement between the parties as to those documents that have been so apportioned, that issue will be dealt with at 10:00 am on the first day of the hearing, 1 August 2018.
Pursuant to Rule 10.06 of the Family Law Rules 2004, I direct the parties to make respective formal offers of settlement by 5:00 pm on Tuesday, 31 July 2018.
The parties each file a chronology and a draft balance sheet,…

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 Massalski and Riley

Details

AGLC: Massalski and Riley [2018] FamCA 678
Case: [2018] FamCA 678
Decision Date: 27 July 2018

CaseChat Overview and Summary

In the matter of *Massalski and Riley*, heard by McClelland J, the proceedings concerned a dispute between the parties, presumably in family law proceedings given the nature of the orders. The court addressed several interlocutory matters to facilitate the progression of the case towards resolution.

The court was required to determine the arrangements for obtaining and valuing a specific property, the timing of the hearing, the process for inspecting documents obtained via subpoena, and the exchange of formal settlement offers and financial documents. Specifically, the court needed to decide on the steps to be taken by the respondent husband to obtain building plans and arrange a drive-by valuation of the D Street property, and whether the wife should be permitted to obtain her own independent valuation. Further issues included the management of documents produced under subpoena, particularly concerning potential privacy infringements or oppressive material, and the requirement for parties to make formal offers of settlement and file chronologies and draft balance sheets.

McClelland J ordered that the hearing dates of 30 and 31 July 2018 be vacated and the hearing proceed for three days commencing 1 August 2018. The respondent husband was directed to take reasonable steps to obtain building plans for the D Street property and to arrange and pay for a drive-by valuation, to be provided to the wife's solicitor by 5:00 pm on 30 July 2018. Permission was granted under Rule 15.52 of the Family Law Rules 2004 for the wife to obtain her own independent valuation of the property if she wished to challenge or verify the drive-by valuation. The court also addressed the inspection of subpoenaed documents, granting the husband the right of first inspection by 5:00 pm on 30 June 2018 to identify documents that might infringe third-party privacy or be oppressive, with any disagreements to be dealt with on the first day of the hearing. Pursuant to Rule 10.06 of the Family Law Rules 2004, parties were directed to exchange formal settlement offers and file chronologies and draft balance sheets by 5:00 pm on 31 July 2018. The parties' costs of the day were reserved.

Orders

Orders of the court

The hearing dates of 30 and 31 July 2018 are vacated.

The hearing will be conducted for three (3) days, commencing 1 August 2018.

The Respondent husband is to take such steps as he is reasonably able to obtain building plans for property known as D Street, Suburb E.

The husband is to arrange and pay for a drive-by valuation of the D Street property, which shall be provided to the solicitor for the wife by no later than 5:00 pm on Monday, 30 July 2018.

In so far as the wife wishes to challenge or verify the value of the drive by valuation, I grant permission, pursuant to Rule 15.52 of Family Law Rules 2004, for the wife to obtain her own independent valuation of the D Street property and to rely upon that valuation as that of an expert witness.

The parties’ costs of today be reserved.

Subject to order 8 herein, the parties have liberty to inspect all documents produced in accordance with subpoenas issued in these proceedings, to date.

The husband have the right of first inspection in relation to the subpoena documents referred to in order 7 herein, which is to be exercised prior to 5:00 pm on Monday, 30 June 2018, with a view to, if necessary, apportioning from those documents, documents that the husband contends infringe the privacy of a third party to the litigation or are otherwise oppressive.

In the event that there is a disagreement between the parties as to those documents that have been so apportioned, that issue will be dealt with at 10:00 am on the first day of the hearing, 1 August 2018.

10.

Pursuant to Rule 10.06 of the Family Law Rules 2004, I direct the parties to make respective formal offers of settlement by 5:00 pm on Tuesday, 31 July 2018.

11.

The parties each file a chronology and a draft balance sheet, by 5:00 pm on Tuesday, 31 July 2018.

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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