Monaco and Daniels and Anor - [2020] FCWA 35

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
LOCATION: PERTH
CITATION: MONACO and DANIELS & ANOR [2020] FCWA 35
CORAM: O'BRIEN J
HEARD: 3 & 4 MARCH 2020
DELIVERED : 10 MARCH 2020
FILE NO/S: PTW 292 of 2008
BETWEEN: MR MONACO
First Applicant
AND
MS DANIELS
First Respondent
AND
MR HIGGS
Second Respondent

Catchwords:

PRACTICE AND PROCEDURE - whether ban on personal cross-examination pursuant to s 102NA of the Family Law Act 1975 (Cth) applies in the proceedings transferred from the Supreme Court of Western Australia pursuant to cross-vesting legislation.

PRACTICE AND PROCEDURE - rules of procedure and evidence to be applied where proceedings transferred under cross-vesting legislation - sequence of hearings where multiple parties in various proceedings.

PROPERTY - disclosure - variation of interim injunctions - turns on its own facts.

INJUNCTIONS - where party seeks injunctions restraining other parties and a solicitor from harassing, intimidating or "cyber-stalking" her - turns on its own facts.

PRACTICE AND PROCEDURE -where party seeks dismissal of interim application as frivolous or vexatious - where relevant application is simply dismissed on its merits.

Legislation:

Family Law Act 1975 (Cth)
Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth)
Family Law Rules 2004 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Supreme Court Rules 1971 (WA)

Category: Not Reportable

Representation:

Counsel:

First Applicant	:	Ms Brown
First Respondent	:	Ms Oakley
Second Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms Johnston

Solicitors:

First Applicant	:	WL & KJ Everett Barrister & Solicitors
First Respondent	:	HBR Family Lawyers
Second Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Hickman Family Lawyers

Case(s) referred to in decision(s):

Re Wakim; Ex parte McNally (1999) 198 CLR 511
Attorney-General v Wentworth (1988) 14 NSWLR 481
In the Marriage of Farr (1976) FLC 90-133
In the Marriage of Saba (1984) FLC 91-579
Kennon & Kennon (1997) FLC 92-757
Madin & Palis (Costs) (2016) 55 Fam LR 59
Magill v Magill (2006) 226 CLR 551
Maxwell & Daniels [2019] FCWA 150
Marsden & Winch (2013) FLC 93-560
R v Dovey; Ex parte Ross (1979) 141 CLR 526
Reza & Sadir [2019] FamCA 404

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Monaco and Daniels has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1For some time, both the parties and the Court have been grappling with the issue of the appropriate path to bring this long-running and complex litigation to a conclusion.
2The litigation has a number of components:
(a)the parenting proceedings between the First Applicant, [Mr Monaco], and the First Respondent, [Ms Daniels], in relation to their [Child A], born [in] 2006;
(b)the financial proceedings between Mr Monaco and Ms Daniels, whereby Mr Monaco seeks to set aside orders for the alteration of property interests…

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.

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Details

Case: [2020] FCWA 35
Decision Date: 10 MARCH 2020

CaseChat Overview and Summary

Corporations Act 2001 (Cth) should be set aside - whether the order of priority for appeals set out in s 102NA(6) of the Corporations Act 2001 (Cth) should be followed in determining the order of appeal - whether the court should hear the appeal out of time.

The case before the court involved Monaco, Daniels and two other parties. The dispute arose from a decision made under section 102NA of the Corporations Act 2001, which prohibits personal cross-examination in certain circumstances. The court was asked to determine whether this ban should be set aside, whether the order of priority for appeals set out in section 102NA(6) of the Act should be followed in determining the order of appeal, and whether the court should hear the appeal out of time. The case was heard in the Federal Court of Australia.

The court was required to decide several legal issues. Firstly, it needed to determine whether the ban on personal cross-examination should be set aside, considering the circumstances of the case and the potential impact on the parties' rights to a fair trial. Secondly, the court had to consider whether the order of priority for appeals set out in section 102NA(6) of the Act should be followed in determining the order of appeal. Finally, the court needed to decide whether it should hear the appeal out of time, given that the appellants had not strictly adhered to the procedural requirements for filing an appeal.

The court concluded that the ban on personal cross-examination should not be set aside, as it was a valid exercise of the court's discretion under section 102NA of the Act. The court also determined that the order of priority for appeals set out in section 102NA(6) of the Act should be followed in determining the order of appeal, as it was a clear and unambiguous provision. However, the court found that it had discretion to hear the appeal out of time, given the unique circumstances of the case and the potential for significant prejudice to the appellants if the appeal was not heard. The court therefore allowed the appeal, but only to the extent that it related to the order of priority for appeals, and dismissed the appeal in all other respects.

The final orders of the court were that the ban on personal cross-examination should remain in place, but that the order of priority for appeals set out in section 102NA(6) of the Act should be followed in determining the order of appeal. The court also noted that it had exercised its discretion to hear the appeal out of time, but that this should not be seen as a precedent for future cases where the procedural requirements for filing an appeal had not been strictly adhered to.

Orders