Munro & Waleria - [2023] FedCFamC2F 1534

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Munro & Waleria [2023] FedCFamC2F 1534

File number(s): PAC 6460 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 1 December 2023

Catchwords: FAMILY LAW – PROPERTY – Harman undertaking – Where respondent husband is deceased – Where applicant wife has applied for Letters of Administration to Supreme Court of NSW, Equity Division, in respect to the deceased’s estate – Where applicant wife contends that the deceased died intestate – Leave granted to provide documents from this Court’s property proceedings to Supreme Court of NSW, Equity Division.

Legislation:
Family Law Act 1975 (Cth) ss 79, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.19, 6.04

Succession Act 2006 (NSW) s 127

Cases cited:
Hearne v Street [2008] HCA 36

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283

Littlefield & Pemble [2023] FedCFamC1A 198

Pace & Halkias [2021] FamCAFC 81

S (deceased) & S [2002] FamCA 1281

Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Re W: Publication Application (1997) FLC 92-756

Division: Division 2 Family Law

Number of paragraphs: 45

Date of hearing: 16 November 2023

Place: Parramatta

Solicitor for the Applicant: Ms Singh, Justice Family Lawyers

Solicitor for the Respondents: No appearance
ORDERS

PAC 6460 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MUNRO

Applicant

AND:
MR WALERIA

First Respondent

MS WALERIA

Second Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

1 DECEMBER 2023

THE COURT ORDERS THAT:
1.The Applicant Wife is granted leave to file the Orders of this Court dated 30 August 2023 and the affidavit of Mr Waleria filed 6 September 2023 in the Supreme Court of New South Wales, Equity Division, in support of her application for Letters of Administration in respect to the estate of the deceased husband.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This is the determination of an Application in a Proceeding filed 3 October 2023 filed by the wife in these property proceedings seeking leave…

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 Munro & Waleria

Details

AGLC: Munro & Waleria [2023] FedCFamC2F 1534
Case: [2023] FedCFamC2F 1534
Decision Date: 1 December 2023

CaseChat Overview and Summary

The matter before the Federal Circuit and Family Court of Australia involved Ms Munro, the Applicant, who sought leave to file certain documents in the Supreme Court of New South Wales, Equity Division. The documents in question were the Court's orders dated 30 August 2023 and an affidavit by the deceased, Mr Waleria, filed on 6 September 2023. Ms Munro sought these documents to support her application for Letters of Administration concerning her deceased husband's estate, who is the first respondent. The second respondent, Ms Waleria, is not directly involved in the matter before the Court. The Court had to determine whether Ms Munro should be granted leave to file the specified documents with the Supreme Court.

The central legal issue before the Court was whether Ms Munro should be permitted to provide documents from the Court's property proceedings to the Supreme Court of New South Wales, Equity Division, in support of her application for Letters of Administration. This decision hinged on the relevance and admissibility of the documents in question, and whether their filing would assist in the proper administration of the deceased's estate.

In delivering its reasons, the Court considered the application of the Family Law Act 1975 (Cth) and the rules governing the Court's proceedings. The Court noted that Ms Munro had made a valid application for Letters of Administration, asserting that the deceased died intestate. The Court was satisfied that the orders and affidavit in question were pertinent to the administration of the estate and would be of assistance to the Supreme Court in its proceedings. Consequently, the Court granted Ms Munro leave to file the specified documents, considering it appropriate and in the interests of justice to do so. This decision facilitated the proper administration of the deceased's estate in the Supreme Court.

The Court's final order was that Ms Munro is granted leave to file the orders of this Court dated 30 August 2023 and the affidavit of Mr Waleria filed on 6 September 2023 in the Supreme Court of New South Wales, Equity Division, in support of her application for Letters of Administration in respect to the estate of the deceased husband. This order was made subject to the entry in the Court's records and any subsequent review or variation as permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

PAC 6460 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS MUNRO

Applicant

AND:

MR WALERIA

First Respondent

MS WALERIA

Second Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

1 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Applicant Wife is granted leave to file the Orders of this Court dated 30 August 2023 and the affidavit of Mr Waleria filed 6 September 2023 in the Supreme Court of New South Wales, Equity Division, in support of her application for Letters of Administration in respect to the estate of the deceased husband.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	PAC 6460 of 2021
Judgment of:	JUDGE NEWBRUN
Date of judgment:	1 December 2023
Catchwords:	FAMILY LAW – PROPERTY – Harman undertaking – Where respondent husband is deceased – Where applicant wife has applied for Letters of Administration to Supreme Court of NSW, Equity Division, in respect to the deceased’s estate – Where applicant wife contends that the deceased died intestate – Leave granted to provide documents from this Court’s property proceedings to Supreme Court of NSW, Equity Division.
Legislation:	Family Law Act 1975 (Cth) ss 79, 121 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.19, 6.04 Succession Act 2006 (NSW) s 127
Cases cited:	Hearne v Street [2008] HCA 36 Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 Littlefield & Pemble [2023] FedCFamC1A 198 Pace & Halkias [2021] FamCAFC 81 S (deceased) & S [2002] FamCA 1281 Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 Re W: Publication Application (1997) FLC 92-756
Division:	Division 2 Family Law
Number of paragraphs:	45
Date of hearing:	16 November 2023
Place:	Parramatta
Solicitor for the Applicant:	Ms Singh, Justice Family Lawyers
Solicitor for the Respondents:	No appearance

PAC 6460 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MUNRO Applicant
AND:	MR WALERIA First Respondent MS WALERIA Second Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	1 DECEMBER 2023