Murray and Murray (No 2) - [2019] FamCA 846

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY (NO. 2)

[2019] FamCA 846

FAMILY LAW – APPLICATION TO RE-OPEN – Where the wife seeks to re-open final property proceedings to adduce further evidence after judgment has been reserved – Where the new evidence is so material that the interests of justice require its admission – Where, if accepted, the new evidence would most probably affect the result and could not by reasonable diligence have been discovered earlier – Where any prejudice or embarrassment that the husband might suffer by reason of the new evidence being admitted is not a weighty consideration given the nature of the evidence – Where the wife is granted leave to be able to adduce further evidence.

Family Law Act 1975 (Cth)

Black & Kellner (1992) FLC 92-287
Reid v Brett [2005] VSC 18
Weir and Weir (1993) FLC 92-338

APPLICANT:

Ms Murray

RESPONDENT:

Mr Murray

FILE NUMBER:

SYC

5665

2014

DATE DELIVERED:

18 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lynch, counsel

SOLICITOR FOR THE APPLICANT:

Pearson Emerson Meyer Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

As per Order 2 made 28 October 2019

In the wife’s Application in a Case filed 23 September 2019, leave be granted to the wife to reopen the case and adduce the following further evidence:
a)The statement of Mr R provided NSW Police Force on 21.11.18 which has been marked Exhibit 55;
b)The transcript of criminal proceedings in the …, pages 298 – 344 which is Exhibit 54;
c)The oral evidence of Mr R given on 28 October 2019 in the Application in a Case.

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 Murray & Murray 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 Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5565 of 2014

Ms Murray

Applicant

And

Mr Murray

Respondent

REASONS FOR JUDGMENT

On 28 October 2019, I made the following orders:
1. A certificate pursuant to s 128 be given to Mr R for the evidence he has given in court in these proceedings today.
2.In the wife’s Application in a Case filed 23 September 2019, leave be granted to the wife to reopen the case and adduce the following further evidence:
a)The statement of Mr R provided NSW Police Force on … 2018 which has been marked Exhibit 55;
b)The transcript of proceedings in a jury trial, pages 298 – 344 which is…

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 Murray and Murray (No 2)

Details

AGLC: Murray and Murray (No 2) [2019] FamCA 846
Case: [2019] FamCA 846
Decision Date: 18 November 2019

CaseChat Overview and Summary

In *Murray and Murray (No 2)*, the wife sought leave from Watts J of the Family Court of Australia to re-open final property proceedings after judgment had been reserved. The wife wished to adduce further evidence that she contended was so material that the interests of justice required its admission.

The central legal issue before the court was whether to grant the wife leave to re-open the proceedings and adduce the further evidence. This required the court to consider whether the new evidence, if accepted, would most probably affect the result of the proceedings and whether it could not by reasonable diligence have been discovered earlier. The court also had to weigh any prejudice or embarrassment the husband might suffer against the materiality of the evidence.

Watts J reasoned that the new evidence met the criteria for admission. The court found that the evidence was of such a nature that it would most probably affect the result of the proceedings and that it could not have been discovered earlier through reasonable diligence. Furthermore, any prejudice to the husband was considered not to be a weighty factor given the nature of the evidence. Consequently, the wife was granted leave to re-open the case and adduce the further evidence, which included a police statement, a transcript of criminal proceedings, and the oral evidence of Mr R.

Orders

Orders of the court

As per Order 2 made 28 October 2019

In the wife’s Application in a Case filed 23 September 2019, leave be granted to the wife to reopen the case and adduce the following further evidence:

a) The statement of Mr R provided NSW Police Force on 21.11.18 which has been marked Exhibit 55;

b) The transcript of criminal proceedings in the …, pages 298 – 344 which is Exhibit 54;

c) The oral evidence of Mr R given on 28 October 2019 in the Application in a Case.

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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