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 | |
| 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
That the husband be granted leave to reopen his case.
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.
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.
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.
That the wife’s costs of and incidental to any additional hearing be reserved.
That the wife’s application for costs is reserved.
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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- AGLC
- McDermott & McDermott [2016] FamCA 613
- Case
- [2016] FamCA 613
- Decision Date
CaseChat Overview and Summary
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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