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Massalski & Riley (No 7)

Massalski & Riley (No 7)

Case [2023] FedCFamC1F 128 8 March 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Massalski & Riley (No 7) [2023] FedCFamC1F 128

File number(s): SYC 496 of 2015

Judgment of: HARPER J

Date of judgment: 8 March 2023

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Where wife has been declared a vexatious litigant under s 102QB of the Family Law Act 1975 (Cth) – Where wife seeks leave to institute proceedings against the Court appointed receiver – Whether order made pursuant to s 102QB applies to application against the receiver – No basis for the granting of leave established – Leave refused – Application dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Application for leave to intervene by wife’s ex-partner – Where intervention concerns proceedings already concluded – Where no proceedings to intervene in currently on foot – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 4, 90SN, 102QB, 102QE

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Div 11.1.6, rr 11.53, 11.54

Cases cited:
Barre & Barre [2021] FamCA 101

Massalski & Riley [2019] FamCA 1013

Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116

Massalski & Riley (2022) 65 Fam LR 73; [2022] FedCFamC1F 36

Massalski & Riley (No 3) [2022] FedCFamC1F 562

Massalski & Riley (No 4) [2022] FedCFamC1F 832

Massalski & Riley (No 5) [2022] FedCFamC1F 835

Massalski & Riley (No 6) [2022] FedCFamC1F 1029

Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 27 February 2023

Place: Sydney

The Applicant: Litigant in person

Solicitor for the First Respondent: Christopher Farah Solicitor

Solicitor for the Second Respondent: Brynes Legal

The Intervener: Litigant in person
ORDERS

SYC 496 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MASSALSKI

Applicant

AND:
MR AG
First Respondent

MR RILEY

Second Respondent

MR K

Intervener

order made by:

HARPER J

DATE OF ORDER:

8 March 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the Applicant on 24 October 2022 (“the Application”) be dismissed.
2.The application to intervene filed on 10 January 2023 by Mr K be dismissed.
3.The Applicant pay the First Respondent’s costs of the Application on a party and party basis, as agreed or assessed.
4.The Applicant pay the Second Respondent’s costs of the Application, as assessed on an indemnity basis.

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…

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 7)

Details

AGLC: Massalski & Riley (No 7) [2023] FedCFamC1F 128
Case: [2023] FedCFamC1F 128
Decision Date

CaseChat Overview and Summary

The case of Massalski & Riley (No 7) involves ongoing property proceedings between Ms Massalski, the applicant wife, and Mr Riley, the respondent husband, who were in a de facto relationship but never married. The dispute centres on the wife's attempts to challenge the substantive final property orders, the appointment of a receiver to enforce those orders, and her subsequent efforts to initiate proceedings against the receiver. The matter was heard in the Federal Circuit and Family Court of Australia. The primary legal issues before the court were whether the wife, who had been declared a vexatious litigant, required leave to institute proceedings against the receiver appointed to enforce court orders in favour of the husband, and whether the wife's ex-partner, Mr K, had standing to intervene in the proceedings. The court examined whether the wife's application to commence proceedings against the receiver was subject to the leave requirement imposed by the earlier orders, and if so, whether any basis existed for granting that leave. The court also considered whether Mr K had any grounds to intervene in the proceedings.

The court found that the wife's application to institute proceedings against the receiver was indeed subject to the leave requirement. It held that the phrase "in relation to" in the earlier orders was broad enough to encompass proceedings against the receiver, who was appointed to enforce orders in favour of the husband. The court dismissed the wife's application for leave to proceed against the receiver, as she failed to provide any evidence or argument that could substantiate her allegations of misconduct. The court also dismissed Mr K's application to intervene, as there were no existing proceedings into which he could intervene. The wife was ordered to pay costs to both the husband and the receiver.

Orders