MURRAY & MURRAY - [2019] FamCA 737

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY

[2019] FamCA 737

FAMILY LAW – PROPERTY – Application to re-open – Where the wife seeks to re-open final property proceedings after judgment has been reserved – Where the wife seeks to adduce further evidence and have the opportunity to obtain additional evidence to tender in the property settlement hearing – Where the possible new evidence is so material that the interests of justice may require its admission – Where, if accepted, the possible 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 possible new evidence being admitted is not a weighty consideration given the nature of the evidence – Where the wife is granted conditional leave to be able to obtain further evidence and for that purpose orders are made which attempt to confine and expedite the finalisation of the hearing

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:

11 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

30 September 2019; 11 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

At 10 am on Monday 28 October 2019, Mr R attend the Family Court of Australia, 97-99 Goulburn St, Sydney 2000, Court …, to give evidence and produce any documents he retains in his control relevant to the cash deposits made by him on behalf of the husband including a copy of any statement, answers or information he provided to the Police or any investigation related to those deposits;
On or before Monday 21 October 2019, the Australian Federal Police and the NSW Police Force produce to the Court:
2.1 A copy of any statement made by Mr R relevant to cash deposits of almost $1 million made by him in amounts of less than $10,000 at bank branches in NSW, Victoria and Queensland during 2016; and
2.2 Any other document relating to the cash deposits by Mr R referred to in 2.1
which is in their possession or control.
The Australia Federal Police and the NSW Police Force have leave to approach my Associate as a matter of urgency for a listing in the event that they seek to claim privilege in relation to the document referred to in Order 2;
The wife be responsible for compensating the Australian Federal Police (or if relevant, the NSW Police Force) for any costs incurred by them for producing the document pursuant to these orders;
The Registrar is requested to urgently obtain a transcript of Mr R’s evidence on … 2019 during the criminal trial of …; and
The husband is to inform Mr R of the terms of Order 1 and to…

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: MURRAY & MURRAY [2019] FamCA 737
Case: [2019] FamCA 737
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the Family Court of Australia, Justice Watts considered an application by the wife to re-open final property proceedings after judgment had been reserved. The wife sought to adduce further evidence and obtain additional evidence for the property settlement hearing.

The central legal issue was whether the interests of justice required the admission of the wife's potential new evidence, which she contended was so material that it would most probably affect the result and could not have been discovered earlier through reasonable diligence. The court also considered the prejudice or embarrassment the husband might suffer from the admission of this evidence.

Justice Watts reasoned that if the new evidence was accepted, it would likely alter the outcome of the proceedings and that the wife had demonstrated reasonable diligence in its discovery. The court found that any prejudice to the husband was not a weighty consideration compared to the potential materiality of the evidence. Consequently, the wife was granted conditional leave to obtain further evidence, with orders made to expedite the finalisation of the hearing. These orders included requiring a Mr R to attend court to give evidence and produce documents relating to significant cash deposits, and directing the Australian Federal Police and NSW Police Force to produce relevant statements and documents. The wife was made responsible for any costs incurred by the police in producing these documents.

Orders

Orders of the court

At 10 am on Monday 28 October 2019, Mr R attend the Family Court of Australia, 97-99 Goulburn St, Sydney 2000, Court …, to give evidence and produce any documents he retains in his control relevant to the cash deposits made by him on behalf of the husband including a copy of any statement, answers or information he provided to the Police or any investigation related to those deposits;

On or before Monday 21 October 2019, the Australian Federal Police and the NSW Police Force produce to the Court:

2.1 A copy of any statement made by Mr R relevant to cash deposits of almost $1 million made by him in amounts of less than $10,000 at bank branches in NSW, Victoria and Queensland during 2016; and

2.2 Any other document relating to the cash deposits by Mr R referred to in 2.1

which is in their possession or control.

The Australia Federal Police and the NSW Police Force have leave to approach my Associate as a matter of urgency for a listing in the event that they seek to claim privilege in relation to the document referred to in Order 2;

The wife be responsible for compensating the Australian Federal Police (or if relevant, the NSW Police Force) for any costs incurred by them for producing the document pursuant to these orders;

The Registrar is requested to urgently obtain a transcript of Mr R’s evidence on … 2019 during the criminal trial of …; and

The husband is to inform Mr R of the terms of Order 1 and to facilitate an arrangement where the wife can serve Mr R with a copy of that Order.

I reserve each parties’ costs for today.

I adjourn for mention the wife’s Application in a Case filed 2 September 2019.

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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