Scott & Munayallan (No. 3) - [2021] FedCFamC1F 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Scott & Munayallan (No. 3) [2021] FedCFamC1F 121

File number(s): SYC 59 of 2010

Judgment of: HENDERSON J

Date of judgment: 8 October 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for disqualification and a stay of orders listing the matter for a final hearing and granting the wife’s application for costs and interim property distribution – Discussion of relevant principles – Applications dismissed

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Concrete Pty Limited v Parramatta Design & Developments Pty Ltd 229 CLR 557

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Hartnett & Sampson [2008] FamCA 75

Johnson v Johnson (2000) 201 CLR 488

Karadaghian v Big Beat (Australia) Pty Ltd (No 3) [2014] NSWSC 1691

Division: Division 1 First Instance

Number of paragraphs: 41

Date of hearing: 7-8 October 2021

The Applicant: Self-represented litigant

Counsel for the Respondent: Mr Duc

Solicitor for the Respondent: Mills Oakley Lawyers
ORDERS

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1

BETWEEN:
MR SCOTT

Applicant

AND:
MS MUNAYALLAN

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

8 OCTOBER 2021

THE COURT ORDERS THAT:
1.The application made for disqualification be dismissed.
2.The application made for a stay of Orders made be dismissed.
3.The matter be set down at 10am on 12 October 2021 for final hearing to resume.

AND THE COURT NOTES THAT:
4.Mr S. advised the Court he will not participate in the hearing of this matter until his current appeal has been heard. There is no date allocated for his appeal to be heard.

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 the pseudonyms Munayallan & Scott (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

This is an application by Mr Scott (“the husband”) that I disqualify myself from hearing this matter, it is the third application he has made in this regard, and that I stay orders I have made.
The stay of orders was that the final hearing proceed made on 13 August 2021 and on that date I also made an order refusing his application to disqualify myself. Additionally, today, Mr S. sought that I stay orders made…

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 Scott & Munayallan (No. 3)

Details

AGLC: Scott & Munayallan (No. 3) [2021] FedCFamC1F 121
Case: [2021] FedCFamC1F 121
Decision Date

CaseChat Overview and Summary

Mr Scott brought an application to disqualify the judge from hearing the final hearing of this matter and to stay the orders made by the judge, including the orders that the final hearing proceed and the orders that the husband pay the wife a lump sum of costs, an interim costs order being by way of a property distribution and an indemnity costs order. The wife opposed the application. The application was dismissed. The court found that the husband had not established a proper basis for his application that the reasonable observer would not believe the judge would bring a fair mind to the trial. The husband had made the application as a delaying tactic and in an endeavour to stop the hearing of the matters before the court on a final basis. The husband had not commenced to present his case and the court had not been able to hear evidence or test evidence. The court found that the husband had an opportunity to address the concerns raised in the final hearing and the appeal process was still available to the husband. The court found the appeal to be weak given the judgments delivered on the evidence that was before the court at those times. The court found the application for a stay of orders was also weak and refused the application. The matter was listed for a final hearing to commence the next week.

The court ordered that the application for disqualification be dismissed, the application for a stay of orders be dismissed and the matter be set down for a final hearing to commence the next week. The court noted that the husband advised the court he would not participate in the hearing until his current appeal had been heard and there was no date allocated for his appeal to be heard.

Orders