MUNAYALLAN & SCOTT - [2018] FamCA 115

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT

[2018] FamCA 115

FAMILY LAW – PROPERTY – Where the wife seeks orders for the division of property – Where there are proceedings in the New South Wales Supreme Court in relation to one of the properties – Where a conciliation conference is not appropriate – Where the Court is reluctant to take too many steps in relation to property prior to the outcome of proceedings in another Court as there may be no assets to be divided – Where no order is made in relation to property.

FAMILY LAW – CHILDREN – Where there are competing proposals in relation to parental responsibility and time spent with each parent – Where there may be a level of cooperation between the parties – Where it is ordered that a family report be prepared.

Family Law Act 1975 (Cth) ss 60CC, 106B
Family Law Regulations 1984 (Cth) reg 7

APPLICANT:

Ms Munayallan

RESPONDENT:

Mr Scott

INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

FILE NUMBER:

SYC

2010

DATE DELIVERED:

15 January 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

15 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Remington & Co

RESPONDENT:

Mr Scott in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Rowley

Orders

A family report be ordered directed particularly to:
1.1the wishes of the children,
1.2the question of family violence,
1.3the question of parental responsibility, and
1.4the question of whether the current equal time arrangement is meeting the needs of the children adequately and if not what arrangement would meet the needs of the children;
together with such that the other matters in s 60CC of the Family Law Act 1975 (Cth) that the family report writer considers appropriate and that are raised with that report writer by the parties.
The Court Notes that Mr B provided a memorandum in the proceedings and there may be an efficiency, if he was available to prepare the report, if he was to do so.
The father provide any passports in the name of the children, current or expired, to the registry manager within seven days from today’s date.
As soon as practicable after the date of the interviews with the family report writer are known the Independent Children’s Lawyer cause the proceedings be restored to the list for consideration of making trial directions if not in relation to all outstanding proceedings, in relation to the parenting proceedings.
Any third party against whom orders may be sought or in respective of whom orders sought in these proceedings may affect their rights or interests be served with that process or amended process within 28 days from today’s date.
Leave is granted to any of the parties to restore the proceedings to the list on giving seven days’ notice to the Court and to each other.

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…

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

AGLC: MUNAYALLAN & SCOTT [2018] FamCA 115
Case: [2018] FamCA 115
Decision Date: 15 January 2018

CaseChat Overview and Summary

In the Family Court of Australia, before Loughnan J, the wife sought orders for the division of property. The proceedings were complicated by separate litigation concerning one of the properties in the Supreme Court of New South Wales. The Court expressed reluctance to make substantive property orders before the outcome of the New South Wales proceedings, given the potential for no assets to remain for division. Consequently, no orders were made in relation to property at this stage.

The Court was also required to determine competing proposals regarding parental responsibility and time spent with each parent. While acknowledging a potential for cooperation between the parties, the Court determined that a family report was necessary to assist in resolving these issues. The family report was specifically directed to the wishes of the children, the question of family violence, parental responsibility, and an assessment of whether the current equal time arrangement adequately met the children's needs, along with other relevant matters under section 60CC of the *Family Law Act 1975* (Cth).

The Court ordered the preparation of a family report, noting the potential efficiency if a particular individual, Mr B, who had provided a memorandum, was available to prepare it. The father was ordered to provide any current or expired passports of the children to the registry manager within seven days. The Independent Children’s Lawyer was directed to restore the proceedings to the list for trial directions concerning the parenting matters as soon as practicable after the dates for interviews with the family report writer were known. Furthermore, any third parties whose rights or interests might be affected by the proceedings were to be served with the relevant process within 28 days. Leave was granted to any party to restore the proceedings to the list on seven days' notice.

Orders

Orders of the court

A family report be ordered directed particularly to:

1.1 the wishes of the children,

1.2 the question of family violence,

1.3 the question of parental responsibility, and

1.4 the question of whether the current equal time arrangement is meeting the needs of the children adequately and if not what arrangement would meet the needs of the children;

together with such that the other matters in s 60CC of the Family Law Act 1975 (Cth) that the family report writer considers appropriate and that are raised with that report writer by the parties.

The Court Notes that Mr B provided a memorandum in the proceedings and there may be an efficiency, if he was available to prepare the report, if he was to do so.

The father provide any passports in the name of the children, current or expired, to the registry manager within seven days from today’s date.

As soon as practicable after the date of the interviews with the family report writer are known the Independent Children’s Lawyer cause the proceedings be restored to the list for consideration of making trial directions if not in relation to all outstanding proceedings, in relation to the parenting proceedings.

Any third party against whom orders may be sought or in respective of whom orders sought in these proceedings may affect their rights or interests be served with that process or amended process within 28 days from today’s date.

Leave is granted to any of the parties to restore the proceedings to the list on giving seven days’ notice to the Court and to each other.

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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