Munayallan and Scott and Ors - [2018] FamCA 1153

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT AND ORS

[2018] FamCA 1153

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties have not complied with procedural directions – Where proceedings have been affected by proceedings in the New South Wales Supreme Court – Where the relief sought includes final orders – Where it is agreed that the proceedings be listed for trial.
WIFE:	Ms Munayallan

HUSBAND:

Mr Scott

RESPONDENT:

Ms Scott

RESPONDENT:

I Pty Ltd

RESPONDENT:

Mr Phong

RESPONDENT:

Ms Phong

FILE NUMBER:

SYC

2010

DATE DELIVERED:

18 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

18 December 2018

REPRESENTATION

COUNSEL FOR THE WIFE:

Mr Duc

SOLICITOR FOR THE WIFE:

Remington & Co Solicitors

HUSBAND:

In person

MS SCOTT:

No appearance

I PTY LTD:

Mr Scott Snr

COUNSEL FOR MR PHONG AND MS PHONG:

Mr Zipser

SOLICITOR FOR MR PHONG AND MS PHONG:

V Lawyers

Orders

The proceedings be listed for final hearing on all parenting and financial issues on a date to be agreed between the parties and the chambers of Justice Loughnan for five days commencing on either 13 May 2019, 20 May 2019 or 27 May 2019 or some such later date as is agreed in those circumstances.
The Court notes that there is no appearance today by or on behalf of the Independent Children’s Lawyer and that there is a single expert in the parenting proceedings whose convenience will need to be met.
The parties file and serve the evidence of all lay witnesses no later than 15 March 2019 or such later date as the parties agree on in writing.
The Court notes that the affidavit evidence of the lay witnesses is to be contained in one consolidated affidavit only from each deponent.
Not later than seven days before the first date of trial the parties provide to the chambers of Justice Loughnan and to each other a case outline document setting the orders sought if they are different to the most recently file application or response, a list of documents to be relied and a summary of the arguments to be made under the provisions of the Family Law Act 1975 (Cth) attracted by the applications.
In the event that any party becomes aware of any matter that would prevent the hearing commencing on the first date or continuing to conclusion on the last date that party is to forthwith restore the proceedings to the list to seek orders about the progress of the trial.

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 Munayallan & Scott 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 Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law…

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 Munayallan and Scott and Ors

Details

AGLC: Munayallan and Scott and Ors [2018] FamCA 1153
Case: [2018] FamCA 1153
Decision Date

CaseChat Overview and Summary

The proceedings before the Family Court of Australia involved Ms Munayallan (the wife) and Mr Scott (the husband), along with respondents Ms Scott, I Pty Ltd, Mr Phong, and Ms Phong. The dispute concerned final property and parenting orders, with the proceedings having been significantly impacted by parallel litigation in the New South Wales Supreme Court. The court was required to determine how best to proceed given the non-compliance with previous procedural directions and the ongoing complexities arising from the Supreme Court proceedings.

The primary legal issues before the court were whether to grant an adjournment of the trial, which had been sought due to the personal circumstances of the husband and his parents, and how to manage the substantive family law proceedings in light of the existing Supreme Court litigation. Specifically, the court needed to consider whether claims against certain respondents had already been determined in the Supreme Court, which would impact the scope of the family law proceedings. The court also had to address the non-compliance with prior directions regarding the filing of case outlines, witness affidavits, and argument summaries.

Justice Loughnan noted that no party had complied with the procedural directions issued on 6 September 2018. Despite an application for adjournment being opposed by the wife and the Phams (purchasers of the subject property), the matter remained listed for hearing. The court acknowledged the wisdom of the respondents' preference to list the proceedings for a final trial, which was not opposed by the husband. The court reasoned that a threshold issue existed regarding whether the claims against the Phams had already been resolved in the Supreme Court, and if so, those proceedings would not succeed, allowing the property proceedings to continue without those issues.

Consequently, the court ordered that the proceedings be listed for a final hearing on all parenting and financial issues on a date to be agreed between the parties and the chambers of Justice Loughnan, with a five-day trial commencing on either 13 May 2019, 20 May 2019, or 27 May 2019, or a later agreed date. Further directions were made for the filing of lay witness evidence by 15 March 2019, the consolidation of affidavit evidence, and the provision of case outlines, document lists, and argument summaries seven days prior to the trial. The court also noted the absence of the Independent Children’s Lawyer and the need to accommodate the single expert in the parenting proceedings.

Orders