Massalski & Riley (No 2) - [2022] FedCFamC1F 155

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Massalski & Riley (No 2) [2022] FedCFamC1F 155

File number(s): SYC 496 of 2015

Judgment of: HARPER J

Date of judgment: 16 March 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Proceeding – Where the de facto wife seeks leave to file an Application in a Proceeding – Where formal application is required from de facto wife – Where leave is granted for de facto wife to file an application to stay – Where orders were made previously dismissing the de facto wife’s s 90SN claim – Where submissions are required pursuant to the de facto husband’s s 102QB application and the application for the appointment of receivers

Legislation: Family Law Act 1975 (Cth) ss 90SN, 102QB

Cases cited: Massalski & Riley [2022] FedCFamC1F 36

Division: Division 1 First Instance

Number of paragraphs: 5

Date of last submission/s: 16 March 2022

Date of hearing: 16 March 2022

Place: Sydney

Solicitor for the Applicant: In person

Solicitor for the Respondent: Byrnes Legal
ORDERS

SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MASSALSKI

Applicant

AND:
MR RILEY

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

16 MARCH 2022

THE COURT ORDERS THAT:
1.The proceedings be stood over to 10.30am on 26 May 2022 to receive submissions limited to the question of whether the de facto husband’s relief pursuant to s 102QB of the Family Law Act 1975 (Cth) and for the appointment of receivers should be granted.
2.Leave be granted to the de facto wife to file and serve an application seeking leave to apply for a stay of orders made 4 February 2022. Such application to be filed by no later than close of registry filing on 19 April 2022, with any such application supported by affidavit.
3.By no later than close of registry filing on 23 May 2022, the parties file a case outline setting out detailed submissions in relation to the relief referred to in Order 1.

THE COURT NOTES THAT:
A.The de facto wife requires leave to file an Application in a Proceeding by reason of Order 5 made on 4 February 2022 that no party was to file any further applications in the proceedings without leave of the Court.

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…

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 & Riley (No 2)

Details

AGLC: Massalski & Riley (No 2) [2022] FedCFamC1F 155
Case: [2022] FedCFamC1F 155
Decision Date

CaseChat Overview and Summary

In the matter of Massalski & Riley (No 2), the de facto wife sought leave to file an application seeking a stay of the court's orders made on 4 February 2022. The court had previously dismissed her claims pursuant to section 90SN of the Family Law Act 1975 (Cth) but reserved the question of whether the de facto husband's claims for relief pursuant to section 102QB of the Act and for the appointment of receivers would be determined on a future date if he chose to press that relief. The de facto wife informed the court that she had appealed the decision of 4 February 2022 and sought leave to file an application staying the orders. The de facto wife required leave to file the application due to an order made on 4 February 2022 that no party was to file any further application in the proceedings without leave of the court.

The court had to decide whether to grant the de facto wife leave to file an application seeking a stay of the orders made on 4 February 2022. The de facto wife identified, as the court understood it, that there were proceedings or disputes between her and purchasers of a property, Unit 2, F Street, Suburb G, which was defined in the court's judgment of 4 February 2022. However, the court found that the de facto wife had not persuaded it that there was any reason to grant her leave to file an application to stay in the absence of a formal application seeking leave supported by affidavit evidence.

The court held that the de facto wife's submissions did not persuade it that there was any reason to grant her leave to file an application to stay in the absence of a formal application seeking leave supported by affidavit evidence. The court granted leave to the de facto wife to file and serve an application seeking leave to apply for a stay of orders made on 4 February 2022. The court ordered that the proceedings be stood over to 10.30am on 26 May 2022 to receive submissions limited to the question of whether the de facto husband's relief pursuant to section 102QB of the Family Law Act 1975 (Cth) and for the appointment of receivers should be granted. The court also ordered that by no later than close of registry filing on 23 May 2022, the parties file a case outline setting out detailed submissions in relation to the relief referred to in Order 1.

Orders