Matten & Munayallan (No 2) - [2023] FedCFamC1A 170

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Matten & Munayallan (No 2) [2023] FedCFamC1A 170

Appeal from: Scott & Munayallan (No 12) [2023] FedCFamC1F 665

Appeal number: NAA 217 of 2023

File number: SYC 59 of 2010

Judgment of: AUSTIN J

Date of judgment: 6 October 2023

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant seeks that orders made in his absence dismissing his appeal be set aside – Where the applicant could not properly explain his absence from the hearing or how the orders pronounced that day were wrongly made – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 10.13, 10.14, 13.38

Cases cited: Matten & Munayallan [2023] FedCFamC1A 147

Number of paragraphs: 26

Date of hearing: 6 October 2023

Place: Newcastle

The Applicant: Litigant in person

The First Respondent: Litigant in person (did not participate)

The Second Respondent: Litigant in person (did not participate)
ORDERS

NAA 217 of 2023
SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR MATTEN

Applicant

AND:
MS MUNAYALLAN

First Respondent

MR SCOTT

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:
1.The Amended Application in an Appeal filed on 4 October 2023 is dismissed.

2.The applicant’s ancillary application to stay the orders made on 11 August 2023 is dismissed.
3.The applicant’s ancillary application to stay the proceedings comprising suit number SYC 59 of 2010 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matten & Munayllan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

On 1 September 2023, orders were made to summarily dismiss the applicant’s application for leave to appeal in Appeal No. NAA 216/2023 and his appeal in Appeal No. NAA 217/2023, for which ex tempore reasons were delivered (Matten & Munayallan [2023] FedCFamC1A 147). Familiarity with such reasons will aid comprehension of the dismissal of the further misguided applications now made by the applicant within the second of those two appeal proceedings.
The applicant did not appear at the former hearing on 1 September 2023 – at least until after both judgments had been pronounced and the ex tempore reasons for the two judgments were already in the course of delivery.
On 13 September 2023, the applicant filed an Application in…

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 Matten & Munayallan (No 2)

Details

AGLC: Matten & Munayallan (No 2) [2023] FedCFamC1A 170
Case: [2023] FedCFamC1A 170
Decision Date: 6 October 2023

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved an application by the applicant, Mr Matten, seeking to set aside orders that had been made in his absence. These orders had dismissed his appeal against a decision related to a family law matter. The respondents to the application were Ms Munayallan and Mr Scott. The applicant's primary contention was that he was unable to properly explain his absence from the hearing or how the orders made were incorrect.

The central legal issue for the court was whether Mr Matten could justify his absence from the hearing and provide sufficient grounds for setting aside the orders made in his absence. The court needed to consider the application's validity in light of Mr Matten's failure to explain his absence adequately and whether he could substantiate his claim that the orders were wrongly made. The court also had to determine whether the application to stay the orders and proceedings was tenable.

In its judgment, the court held that Mr Matten had not provided a satisfactory explanation for his absence from the hearing or demonstrated that the orders were wrongly made. The court found that the application did not meet the required standard to set aside the orders, and accordingly, dismissed the application. Additionally, the court dismissed the applicant's ancillary applications to stay the orders and the underlying proceedings. The dismissal was final, and no further appeals were permitted without leave of the court.

The court's orders were clear and final, dismissing both the application to set aside the orders and the ancillary applications. The applicant was not granted relief in any respect, and the orders made on 11 August 2023, as well as the proceedings in suit number SYC 59 of 2010, remained in effect. The form of the order was subject to entry in the Court's records, with a note that minor errors may be corrected, and variations to the order could be recorded under specific rules.

Orders

Orders of the court

NAA 217 of 2023

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MATTEN

Applicant

AND:

MS MUNAYALLAN

First Respondent

MR SCOTT

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:

1. The Amended Application in an Appeal filed on 4 October 2023 is dismissed.

2. The applicant’s ancillary application to stay the orders made on 11 August 2023 is dismissed.

3. The applicant’s ancillary application to stay the proceedings comprising suit number SYC 59 of 2010 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).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 217 of 2023 SYC 59 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR MATTEN Applicant
AND:	MS MUNAYALLAN First Respondent MR SCOTT Second Respondent

Appeal from:	Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal number:	NAA 217 of 2023
File number:	SYC 59 of 2010
Judgment of:	AUSTIN J
Date of judgment:	6 October 2023
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant seeks that orders made in his absence dismissing his appeal be set aside – Where the applicant could not properly explain his absence from the hearing or how the orders pronounced that day were wrongly made – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 10.13, 10.14, 13.38
Cases cited:	Matten & Munayallan [2023] FedCFamC1A 147
Number of paragraphs:	26
Date of hearing:	6 October 2023
Place:	Newcastle
The Applicant:	Litigant in person
The First Respondent:	Litigant in person (did not participate)
The Second Respondent:	Litigant in person (did not participate)

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	6 OCTOBER 2023