Pillai and Doshi (No 4) - [2011] FamCA 523

FAMILY COURT OF AUSTRALIA

PILLAI & DOSHI (NO 4)

[2011] FamCA 523

FAMILY LAW - SELF REPRESENTED LITIGANTS - ORDERS – Stay – Where the applicant husband sought a stay of orders pending his appeal in an Application in a Case – Where the applicant did not appear at the hearing of the application
FAMILY LAW - PRACTICE AND PROCEDURE - Application - Dismissal or Striking Out – Where the applicant did not appear at the hearing of the application – Where the application was dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), rr 1.04, 1.09, 1.10, 1.12. 11.01

APPLICANT:

Mr Pillai

RESPONDENT:

Ms Doshi

FILE NUMBER:

DGC

664

2007

DATE DELIVERED:

6 July 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

6 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Ms Johns

ORDERS

IT IS ORDERED:

THAT pursuant to order 1(ii) of the orders pronounced 8 March 2011 and further pursuant to paragraph 6 of the application in a case filed by the husband on 1 June 2011 the sum of $2,900 be paid directly to the Westpac Mastercard account of the husband, BSB …, Account Number ….
THAT otherwise the husband’s application in a case, filed 1 June 2011, be dismissed.
THAT the husband be allowed a period of fourteen (14) days from the date of these orders to apply to reinstate his application upon proper material being filed and served.
THAT pursuant to order 1(iii) of the orders pronounced 8 March 2011 a sum of $5,000 be paid to the wife.
THAT the payments of each of the sums of $2,900 and $5,000 (pursuant to the previous orders hereof) be authorised and be made from the joint account held in the names of the parties with the Commonwealth Bank at …, BSB …, Account Number … .
THAT the husband pay the costs of the wife, of and incidental to the appearance by her solicitor at Court this day, such costs being fixed in the sum of $475, to be paid prior to any distribution of monies to be made to the husband pursuant to order 1(iv) and order 2 of the orders pronounced 8 March 2011.
THAT a transcript of these proceedings be authorised and placed upon the Court file and upon request be made available to the parties.
THAT otherwise each of the orders sought by the wife in her response to the application in a case filed 1 July 2011 be dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of a solicitor appearing as counsel for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi (No 4) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 664…

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 Pillai and Doshi (No 4)

Details

AGLC: Pillai and Doshi (No 4) [2011] FamCA 523
Case: [2011] FamCA 523
Decision Date: 6 July 2011

CaseChat Overview and Summary

In *Pillai and Doshi (No 4)*, Young J of the Family Court of Australia considered an application by the husband and a response by the wife concerning financial matters. The proceedings arose from earlier orders made on 8 March 2011.

The court was required to determine whether to grant the husband's application filed on 1 June 2011, which sought specific financial orders, and the wife's response filed on 1 July 2011, which sought other financial orders. The central issue was the distribution of funds from a joint bank account and the payment of costs.

Young J ordered that a sum of $2,900 be paid directly to the husband's Westpac Mastercard account, and a sum of $5,000 be paid to the wife. Both payments were to be authorised and made from the parties' joint Commonwealth Bank account. The husband's application filed on 1 June 2011 was otherwise dismissed, with the husband granted fourteen days to apply for reinstatement upon filing proper material. The wife's response filed on 1 July 2011 was also dismissed. The husband was ordered to pay the wife's costs of the appearance, fixed at $475, to be paid prior to any distribution of monies to the husband. The court also certified that the matter reasonably required the attendance of a solicitor appearing as counsel for the wife.

Orders

Orders of the court

IT IS ORDERED:

THAT pursuant to order 1(ii) of the orders pronounced 8 March 2011 and further pursuant to paragraph 6 of the application in a case filed by the husband on 1 June 2011 the sum of $2,900 be paid directly to the Westpac Mastercard account of the husband, BSB …, Account Number ….

THAT otherwise the husband’s application in a case, filed 1 June 2011, be dismissed.

THAT the husband be allowed a period of fourteen (14) days from the date of these orders to apply to reinstate his application upon proper material being filed and served.

THAT pursuant to order 1(iii) of the orders pronounced 8 March 2011 a sum of $5,000 be paid to the wife.

THAT the payments of each of the sums of $2,900 and $5,000 (pursuant to the previous orders hereof) be authorised and be made from the joint account held in the names of the parties with the Commonwealth Bank at …, BSB …, Account Number … .

THAT the husband pay the costs of the wife, of and incidental to the appearance by her solicitor at Court this day, such costs being fixed in the sum of $475, to be paid prior to any distribution of monies to be made to the husband pursuant to order 1(iv) and order 2 of the orders pronounced 8 March 2011.

THAT a transcript of these proceedings be authorised and placed upon the Court file and upon request be made available to the parties.

THAT otherwise each of the orders sought by the wife in her response to the application in a case filed 1 July 2011 be dismissed.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) this matter reasonably required the attendance of a solicitor appearing as counsel for the wife.

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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