Matten & Munayallan (No 3) - [2023] FedCFamC1A 173

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Matten & Munayallan (No 3) [2023] FedCFamC1A 173

Appeal from: Scott & Munayallan (No 11) [2023] FedCFamC1F 601

Appeal number: NAA 216 of 2023

File number: SYC 59 of 2010

Judgment of: AUSTIN J

Date of judgment: 12 October 2023

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks that orders made in his absence dismissing his application for leave to appeal be set aside – Where the applicant did not properly explain his absence from the hearing – Where the applicant did not properly explain how the orders pronounced in his absence were wrongly made – Application dismissed.

Legislation: 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: 20

Date of hearing: Determined in chambers on the papers

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 216 of 2023
SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MATTEN

Applicant

AND:
MS MUNAYALLAN

First Respondent

MR SCOTT

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

12 OCTOBER 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 4 October 2023 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 & Munayallan (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 application now made by the applicant within the first 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 oral delivery.
In the reasons for judgment given for the summary dismissal of the two appeal proceedings, in view of the applicant’s absence from the hearing, this observation was made:
6.The [applicant] is at liberty to apply to set aside the dismissal orders made 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 3)

Details

AGLC: Matten & Munayallan (No 3) [2023] FedCFamC1A 173
Case: [2023] FedCFamC1A 173
Decision Date: 12 October 2023

CaseChat Overview and Summary

The applicant, Mr Matten, filed an application in the Federal Circuit and Family Court of Australia seeking to set aside orders made in his absence which dismissed his application for leave to appeal a decision in family law proceedings. The first respondent, Ms Munayallan, and the second respondent, Mr Scott, opposed the application. The legal issues before the court were whether the applicant had provided a proper explanation for his absence from the hearing and whether the applicant had demonstrated that the orders made in his absence were wrongly made. The court found that the applicant had not properly explained his absence from the hearing nor had he demonstrated that the orders made in his absence were wrongly made. The court held that the application was an abuse of process and dismissed it. The court's reasons for judgment were that the applicant had failed to provide a satisfactory explanation for his absence from the hearing, which was a requirement under the court's rules. The court also found that the applicant had not demonstrated that the orders made in his absence were wrongly made, as he had not provided any evidence to support his claim. The court held that the application was an abuse of process and dismissed it. The court ordered that the application in an appeal filed on 4 October 2023 be dismissed.

Orders

Orders of the court

NAA 216 of 2023

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MATTEN

Applicant

AND:

MS MUNAYALLAN

First Respondent

MR SCOTT

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

12 OCTOBER 2023

THE COURT ORDERS THAT:

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

Appeal from:	Scott & Munayallan (No 11) [2023] FedCFamC1F 601
Appeal number:	NAA 216 of 2023
File number:	SYC 59 of 2010
Judgment of:	AUSTIN J
Date of judgment:	12 October 2023
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks that orders made in his absence dismissing his application for leave to appeal be set aside – Where the applicant did not properly explain his absence from the hearing – Where the applicant did not properly explain how the orders pronounced in his absence were wrongly made – Application dismissed.
Legislation:	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:	20
Date of hearing:	Determined in chambers on the papers
The Applicant:	Litigant in person
The First Respondent:	Litigant in person (did not participate)
The Second Respondent:	Litigant in person (did not participate)

NAA 216 of 2023 SYC 59 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MATTEN Applicant
AND:	MS MUNAYALLAN First Respondent MR SCOTT Second Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	12 OCTOBER 2023