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Munayallan & Scott (No 5)

Munayallan & Scott (No 5)

Case [2021] FedCFamC1F 284 21 December 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Munayallan & Scott (No 5) [2021] FedCFamC1F 284

File number(s): SYC 59 of 2010

Judgment of: HENDERSON J

Date of judgment: 21 December 2021

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Wife sought a vexatious proceeding order under
section 102QB of the Family Law Act, that the husband be prohibited from filing any further applications without leave of the Court – Application granted

FAMILY LAW – INTERIM PROPERTY SETTLEMENT – Matter to be re-listed upon application of the wife to finalise property proceedings after Supreme Court proceedings are concluded and matrimonial pool for division crystallised.

FAMILY LAW – PROPERTY – SPOUSE MAINTENANCE – Wife sought a lump sum spouse maintenance order – Order made.

FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Application by the respondent to reopen final parenting matter – application dismissed – all outstanding interim applications filed by the husband dismissed

Legislation:
Family Law Act 1975 (Cth) ss 72, 102QB(1), 102QB(2), 102QD, 102QE(2), 102QG.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) r 12.13, 13.03

Cases cited:
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 334; (1981) FLC 91-000

Ashton & Ashton (1986) FLC 91-777

Cannon v Acres [2014] FamCA 104

Ferraro v Ferraro (1993) FLC 92-335; (1992) 16 Fam LR 1

Harris v Harris [2012] FamCA 987

King v Finneran (2001) FLC 93-079 [2001]; FamCA 344

Munayallan & Scott [2019] FamCA 549

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398

Pencious v Searle [2017] FLC 93-805

Phong v P Pty Ltd (No 2)

Pierce v Pierce (1998) FLC 92-844; [1998] FamCA 74

Potier v Attorney General in and for the State of New South Wales [2015] 89 NSWLR 284; NSWCA 129

Re Attorney-General; Ex Parte Skyring (1996) [1996] HCA 4; 135 ALR 29

Rice and Asplund (1979) FLC 90-725;[1978] FamCA 84 1

Stein v Stein (2000) 155 FLR 81; (2000) FLC 93-004

Division: Division 1 First Instance

Number of paragraphs: 243

Date of last submission/s: 13 October 2021

Date of hearing: 12 -13 October 2021

Place: Sydney

Counsel for the Applicant: Mr Duc

Solicitor for the Applicant: Mills Oakley

Solicitor for the Respondent: No appearance. Self-represented Litigant
ORDERS

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MUNAYALLAN

Applicant

AND:
MR SCOTT

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

21 DECEMBER 2021

THE COURT ORDERS THAT:
Vexatious Proceedings Order
1.Pursuant to s 102QE of the Family Law Act1975 (Cth) (“the Act”) a vexatious proceedings order be made against the husband, Mr Scott, born … 1970, and he is prohibited from instituting proceedings under the Act against or in relation to the wife, Ms Munayallan born … 1973 or the children, D, born … 2010; and C, born … 2007, without first having been granted leave to commence that proceeding pursuant to section 102QG of the Act.
(a)This vexatious proceeding order does not apply…

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 & Scott (No 5)

Details

AGLC: Munayallan & Scott (No 5) [2021] FedCFamC1F 284
Case: [2021] FedCFamC1F 284
Decision Date

CaseChat Overview and Summary

The wife, Ms Munayallan, applied to the Federal Circuit and Family Court of Australia for final property, spousal maintenance, and parenting orders. The husband, Mr Scott, sought to reopen the parenting matter. The court dismissed the husband's application and made final parenting orders, a lump sum spouse maintenance order, and a vexatious proceedings order against the husband. The court did not finalise the property proceedings, leaving that matter open until the Supreme Court proceedings were finalised. The court found that the husband had acted vexatiously by filing numerous, unsuccessful applications and appeals. The court concluded that the husband had acted in a manner that was an abuse of process and had instituted proceedings without reasonable grounds. The court also found that the husband had frequently instituted or conducted vexatious proceedings, and the threshold for making a vexatious proceedings order had been met. The court made a vexatious proceedings order against the husband, prohibiting him from instituting proceedings without leave of the court. The court found that the wife had made a significant contribution to the marriage, particularly as a parent and homemaker, and that the husband had failed to support the wife and children adequately. The court assessed the wife's contribution-based entitlement to the assets as 45%, despite the husband's superior direct financial contribution. The court also found that the wife's future needs were 25%, giving her a total entitlement of 70% of the pool, and the husband 30%. The court made a lump sum spouse maintenance order of $100,000, payable by the husband. The court found that the husband had not provided adequate reasons to reopen the parenting matter and dismissed his application. The court made final parenting orders, maintaining the interim orders made in March 2021. The court found that the husband had acted vexatiously by filing numerous, unsuccessful applications and appeals, and made a vexatious proceedings order against him. The court also made a lump sum spouse maintenance order of $100,000, payable by the husband.

Orders