FAMILY COURT OF AUSTRALIA
Massalski & Riley [2021] FamCAFC 116
Appeal from: Massalski & Riley [2019] FamCA 1013 Appeal number(s): EAA of 14 of 2020 File number(s): SYC 496 of 2015 Judgment of: RYAN, ALDRIDGE & WATTS JJ Date of judgment: 13 July 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appellant seeks re-transfer of part of proceedings to another court – De facto financial cause – Appeal against property settlement order under s 90SM of the Family Law Act 1975 (Cth) – Appeal against order to dismiss proceedings transferred to Family Court from the Supreme Court of Victoria – Contributions – Finding that appellant did not have equitable interest in respondent’s property upheld – Credibility – Applications to adduce further evidence allowed in part – Appeal dismissed – Orders made for written submissions on costs in appeal. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 4(1), 31(1), 39A(5), 90RC, 90RD, 90SF, 90SL, 90SM, 90ST, 93A(2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) ss 5(1), 13
Family Law Rules 2004 (Cth) r 4.06
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Trustees of the Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6
Division: Appeal Division Number of paragraphs: 117 Date of hearing: 20 October 2020 & 6 May 2021 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Coleman SC Solicitor for the Respondent: Russell C Byrnes Solicitor ORDERS
EAA of 14 of 2020
SYC 496 of 2015APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS MASSALSKI
Appellant
AND: MR RILEY
Respondent
ORDER MADE BY:
RYAN, ALDRIDGE & WATTS JJ
DATE OF ORDER:
13 JULY 2021
THE COURT ORDERS THAT:
1.The Applications in an Appeal to adduce further evidence filed on 16 July 2020 and 26 April 2021 be allowed in part.
2.Other than provided for in Order 1 (above), the Applications in an Appeal filed on 16 July 2020, 12 October 2020 and 26 April 2021 be dismissed.
3.The appeal be dismissed.
4.In the event that a party objects to the question of the costs of the appeal being determined without a further oral hearing, written notice to this effect…
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- Massalski & Riley [2021] FamCAFC 116
- Case
- [2021] FamCAFC 116
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CaseChat Overview and Summary
The Family Court of Australia, in dismissing the appeal, found that the primary judge's assessment of the evidence and the resulting property settlement order were correct. The court emphasised the importance of reliable and verifiable evidence in determining property settlements and noted that the appellant's evidence was often non-responsive, inconsistent, and lacked independent documentation. The court held that the primary judge was justified in finding the appellant and another party's evidence to be unreliable and in preferring the husband's evidence where conflicts arose. The court also found that the proposed additional evidence did not meet the threshold for admission under section 93A(2) of the Family Law Act 1975 (Cth), as it did not demonstrate that the order under appeal was erroneous.
The court dismissed the appeal and denied the applications to adduce further evidence, except as specified in Order 1. The court ordered that written submissions on the costs of the appeal be provided if a party objected to the costs being determined without a further oral hearing. The form of the order was subject to entry in the court's records.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Applications in an Appeal to adduce further evidence filed on 16 July 2020 and 26 April 2021 be allowed in part.
2. Other than provided for in Order 1 (above), the Applications in an Appeal filed on 16 July 2020, 12 October 2020 and 26 April 2021 be dismissed.
3. The appeal be dismissed.
4. In the event that a party objects to the question of the costs of the appeal being determined without a further oral hearing, written notice to this effect is to be given to the Appeal Registrar at …@familycourt.gov.au and the other party within seven (7) days.
5. A party who seeks costs in the appeal in addition to those already sought shall:
(a) file and serve written submissions in support of that application of no more than ten (10) pages (plus details of the amount sought), within fourteen (14) days; and
(b) if the order for costs is opposed, the party opposing shall file and serve written submissions of no more than ten (10) pages within fourteen (14) days of service of the submissions referred to in the order above; and
(c) the party seeking costs shall file and serve any submissions in reply of no more than five (5) pages within seven (7) days of service.
Note: The form of the order is subject to the entry 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
Ratio Decidendi
Legal Principle Established
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