Samuels and Shaw and Ors (Adjournment application) - [2008] FamCA 880

FAMILY COURT OF AUSTRALIA

SAMUELS & SHAW AND ORS (ADJOURNMENT APPLICATION)

[2008] FamCA 880

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment application

APPLICANT:

Ms Samuels

FIRST RESPONDENT:	Mr Shaw
SECOND RESPONDENT:	Mr P
THIRD RESPONDENT:	L Pty Ltd
FOURTH RESPONDENT:	D Pty Ltd
FIFTH RESPONDENT:	Ms E
SIXTH RESPONDENT:	Mr G
SEVENTH RESPONDENT:	Mr A
EIGHTH RESPONDENT:	Ms J
NINTH RESPONDENT:	Ms S
TENTH RESPONDENT:	Ms T

FILE NUMBER:

SYF

5191

1993

DATE DELIVERED:

3 September 2008

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

20 August 2008

REPRESENTATION

ADVOCATE FOR APPLICANT:	Ms Samuels in person
SOLICITOR FOR THE 1^ST RESPONDENT:	Mrs Ford
ADVOCATE FOR 2^ND, 3^RD & 4^TH RESPONDENTS:	Mr P in person

Orders

IT IS ORDERED:

That the wife’s application for settlement of property and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court be referred to the Court Services Manager for allocation to a Judge’s docket other than Cohen J for hearing.
That the wife file and serve on or before 4.00 pm, 15 October 2008 any amended application for property settlement and/or spousal maintenance or other relief.
In the event the wife seeks a splitting order in respect of any superannuation entitlement she shall give notice to the trustee of such superannuation fund in accordance with the Family Law Rules 2004.
The wife shall file and serve one affidavit of evidence in chief to be relied on by her at the trial on or before 4.00 pm, 15 October 2008.
The wife shall file and serve an affidavit of any witness on or before 4.00 pm, 15 October 2008.
The wife shall file and serve a financial statement on or before 4.00 pm, 15 October 2008.
The husband shall file and serve an amended response on or before 4.00 pm, 5 November 2008.
The husband shall file and serve one affidavit of his evidence in chief on or before 4.00 pm, 5 November 2008.
The husband shall file and serve an affidavit of any witness on or before 4.00 pm, 5 November 2008.
The husband shall file and serve a financial statement on or before 4.00 pm, 5 November 2008.
That the husband and wife shall within two days of filing all documents required by these orders provide a copy of such documents to the wife’s trustee in bankruptcy.
The wife shall file and serve on or before 4.00 pm, 15 October 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties as at that date.
In the event that the husband does not agree the Balance Sheet to be filed by the wife accurately sets out the parties’ assets, liabilities and financial resources he shall file and serve on or before 4.00 pm, 5 November 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties for which he contends as at 15…

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

Case: [2008] FamCA 880
Decision Date: 3 September 2008

CaseChat Overview and Summary

In the matter of *Samuels and Shaw and Ors*, Justice Boland of the Family Court of Australia was required to determine an application for an adjournment. The proceedings concerned a property settlement and a rehearing of a review application, which had previously been before Justice Cohen and remitted from the Full Court. The wife was an undischarged bankrupt, and her trustee in bankruptcy had declined to intervene in these proceedings, although they had intervened in separate proceedings in the Supreme Court of New South Wales. Several respondents had not taken any steps in the proceedings for several years.

The court was required to consider the appropriate procedural steps for the ongoing litigation, including the allocation of the case to a judge, the filing and service of amended applications, affidavits, financial statements, and a balance sheet by both parties. The court also needed to address the potential for applications by respondents to be removed as parties and the implications of the wife's bankruptcy on the proceedings.

Justice Boland ordered that the wife's application for settlement of property and rehearing be referred for allocation to a judge other than Justice Cohen. The court then set out a detailed timetable for the filing and service of various documents by both the wife and the husband, including amended applications, evidence in chief, witness affidavits, financial statements, and balance sheets. The court also directed that copies of all filed documents be provided to the wife's trustee in bankruptcy. Furthermore, the court provided a mechanism for any respondent seeking to be removed as a party to file an application, which could be dealt with as a discrete issue by the trial judge.

Orders

Orders of the court

IT IS ORDERED:

That the wife’s application for settlement of property and for rehearing of the review application heard by Cohen J and remitted from the Full Court of this Court be referred to the Court Services Manager for allocation to a Judge’s docket other than Cohen J for hearing.

That the wife file and serve on or before 4.00 pm, 15 October 2008 any amended application for property settlement and/or spousal maintenance or other relief.

In the event the wife seeks a splitting order in respect of any superannuation entitlement she shall give notice to the trustee of such superannuation fund in accordance with the Family Law Rules 2004.

The wife shall file and serve one affidavit of evidence in chief to be relied on by her at the trial on or before 4.00 pm, 15 October 2008.

The wife shall file and serve an affidavit of any witness on or before 4.00 pm, 15 October 2008.

The wife shall file and serve a financial statement on or before 4.00 pm, 15 October 2008.

The husband shall file and serve an amended response on or before 4.00 pm, 5 November 2008.

The husband shall file and serve one affidavit of his evidence in chief on or before 4.00 pm, 5 November 2008.

The husband shall file and serve an affidavit of any witness on or before 4.00 pm, 5 November 2008.

10.

The husband shall file and serve a financial statement on or before 4.00 pm, 5 November 2008.

11.

That the husband and wife shall within two days of filing all documents required by these orders provide a copy of such documents to the wife’s trustee in bankruptcy.

12.

The wife shall file and serve on or before 4.00 pm, 15 October 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties as at that date.

13.

In the event that the husband does not agree the Balance Sheet to be filed by the wife accurately sets out the parties’ assets, liabilities and financial resources he shall file and serve on or before 4.00 pm, 5 November 2008 a document entitled “Balance Sheet” setting out the assets, liabilities and financial resources of the parties for which he contends as at 15 October 2008.

14.

In the event that any named second to tenth respondent to the proceedings seeks to be removed as a party such party shall file an application in a case, together with an affidavit in support on or before 4.00 pm, 1 December 2008, and such application may be dealt with by the trial judge as a discrete issue at a time and date to be notified to the parties or at the commencement of the hearing.

AND THE COURT NOTES:

(a) The wife is currently an undischarged bankrupt.

(b) The wife’s trustee in bankruptcy has declined to intervene in these proceedings, but did intervene in proceedings in the Supreme Court of New South Wales.

(c) That other than Mr P and L Pty Ltd (the 2nd and 3rd respondents) the remaining named respondents have not taken any steps or filed any material in the proceedings for several years.

(d) It is further noted that a summary of the proceedings in this Court and the issue of jurisdiction and power of the Court to deal with the purported claims against the fifth to ninth respondents is referred to in the judgment of the Honourable Justice Boland of 17 August 2007.

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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