McDermott & McDermott

Case [2016] FamCA 613


FAMILY COURT OF AUSTRALIA

MCDERMOTT & MCDERMOTT AND ORS [2016] FamCA 613
FAMILY LAW – PRACTICE AND PROCEDURE – Application for Leave to Reopen – property proceedings – discussion as to applicable principles – where judgment reserved – where evidence subject of application previously struck out on objection – where evidence if in admissible form is as to a significant issue and relevant – where such evidence likely to affect outcome of proceedings – where leave granted.

Evidence Act 1995 (Cth) s 50

Australian Securities and Investments Commission v Rich [2006] NSWSC 826; 235 ALR 587
Mallard & Mallard [2011] FamCA 876
McDermott & McDermott & Ors [2014] FamCA 615
McDermott & McDermott [2014] FamCA 245
Penfold v Penfold (1980) 144 CLR 311
Summitt & Summit & Ors(Re-Opening) [2009] FamCA 365
Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471

APPLICANT: Mr McDermott
1st RESPONDENT: Ms McDermott
2nd RESPONDENT: B Pty Ltd
RECEIVER: Mr M
FILE NUMBER: SYC 70 of 2014
DATE DELIVERED: 29 July 2016
PLACE DELIVERED: Parramatta
PLACE HEARD: Parramatta
JUDGMENT OF: Foster J
HEARING DATE: 14 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Picker
SOLICITOR FOR THE APPLICANT: Hancock Alldis & Roskov
COUNSEL FOR THE 1ST RESPONDENT: Ms Gillies
SOLICITOR FOR THE 1ST RESPONDENT: Campbell Paton & Taylor
SOLICITOR FOR THE RECEIVER: Colin Biggers & Paisley

Orders

  1. That the husband be granted leave to reopen his case.

  2. That the husband file and serve a supplementary affidavit of his evidence in chief as to the factual issues the subject of this leave application within 21 days from this date.

  3. That the husband within 21 days from this date provide to the wife’s solicitors originals of documents sought to be relied on by him as to any transaction asserted together with a photocopy of such documents and 14 days thereafter the wife’s solicitors return to the husband such original documents.

  4. That the husband within 21 days from this date provide to the wife’s solicitors a summary schedule of the evidence as to the receipt and disposition of funds by him the subject of the leave application identifying where at all possible the source of any funds received by him and the disposition of such funds by reference to objective documents contained his supplementary affidavit.

  5. That the wife’s costs of and incidental to any additional hearing be reserved.

  6. That the wife’s application for costs is reserved.

  7. That the wife file and serve written submissions as to costs within 14 days from this date and the husband file and serve any written submissions in reply with judgment as to costs thereafter reserved to chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDermott & McDermott and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s…

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McDermott & McDermott [2016] FamCA 613
Case
[2016] FamCA 613
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CaseChat Overview and Summary

In *McDermott & McDermott*, Foster J of the Family Court of Australia considered an application by the husband to reopen his case. The dispute concerned financial matters within divorce proceedings, and the husband sought to introduce further evidence and documents relating to the receipt and disposition of funds.

The primary legal issue before the court was whether the husband should be granted leave to reopen his case to adduce further evidence. This involved considering the principles governing the reopening of a case, particularly in the context of financial proceedings where the disclosure of assets and liabilities is crucial.

Foster J applied the established principles for granting leave to reopen a case, which generally require demonstrating that the new evidence is significant, likely to be credible, and could affect the outcome of the proceedings. The court also considered the need for fairness to both parties and the efficient administration of justice. The orders made indicate that the court granted the husband leave to reopen his case, subject to specific conditions regarding the filing of a supplementary affidavit, the provision of original documents and a summary schedule of financial transactions, and the reservation of costs.

Orders

Orders of the court

1.

That the husband be granted leave to reopen his case.

2.

That the husband file and serve a supplementary affidavit of his evidence in chief as to the factual issues the subject of this leave application within 21 days from this date.

3.

That the husband within 21 days from this date provide to the wife’s solicitors originals of documents sought to be relied on by him as to any transaction asserted together with a photocopy of such documents and 14 days thereafter the wife’s solicitors return to the husband such original documents.

4.

That the husband within 21 days from this date provide to the wife’s solicitors a summary schedule of the evidence as to the receipt and disposition of funds by him the subject of the leave application identifying where at all possible the source of any funds received by him and the disposition of such funds by reference to objective documents contained his supplementary affidavit.

5.

That the wife’s costs of and incidental to any additional hearing be reserved.

6.

That the wife’s application for costs is reserved.

7.

That the wife file and serve written submissions as to costs within 14 days from this date and the husband file and serve any written submissions in reply with judgment as to costs thereafter reserved to chambers.

Note: The form of the order is subject to the entry of the order 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

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Ratio Decidendi

Legal Principle Established

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