FAMILY COURT OF AUSTRALIA
| SUMMITT & SUMMITT AND ORS (RE-OPENING) | [2009] FamCA 365 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Re-open – Principles Applicable – Factors Informing The Exercise Of Discretion – Potential Prejudice to the Parties in Re-opening | |
| Family Law Act1975 (Cth) Evidence Act 1995 (Cth) | |
| EBv CT (No. 2) (2008) QSC 306 | |
| APPLICANT: | Mr Summitt |
| 1st RESPONDENT: | Ms Summitt |
| 2nd RESPONDENTS: | Mr and Mrs Summitt (Snr) |
| FILE NUMBER: | BRF | 709 | of | 2006 |
| DATE DELIVERED: | 8 May 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATES: | 8 & 28 April 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk SC |
| SOLICITOR FOR THE APPLICANT: | Hopgood Ganim Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr North SC |
| SOLICITOR FOR THE 1ST RESPONDENT: | K L King & Associates |
| COUNSEL FOR THE 2ND & 3RD RESPONDENTS | Mr Forrest |
| SOLICITOR FOR THE 2ND & 3RD RESPONDENTS: | Murdoch Lawyers |
Orders
The Application in a Case filed by the husband on 17 April, 2009 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Summitt & Summitt and Ors (Re-opening) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: Brisbane 709 of 2006
| MR SUMMITT |
Applicant Husband
And
| MS SUMMITT |
1st Respondent Wife
And
| MR AND MRS SUMMITT (SNR) |
2nd & 3rd Respondents
REASONS FOR JUDGMENT
On 14 November, 2008, a five-day trial of the wife’s application for settlement of property concluded. The case concerned complex arguments including, among others, whether property should be regarded as a commercial partnership’s property (as distinct from property of the parties) and, for example, whether a particular property ought be impressed with a constructive trust. Judgment was reserved.
On 2 March, 2009, at a time when a draft of the judgment was all but complete, correspondence was received from the solicitors for the husband. That correspondence (which was back-copied to the solicitors for the wife) indicated that a re-opening of the hearing would be sought.
The court responded in an e-mail communication addressed to all parties proposing prospective dates when any such application could be heard at the earliest opportunity. As no further communication had been received from any party by 3 April, a further e-mail was sent to all parties. In essence, the court indicated that, as it had not heard further from any party, judgment would be delivered at 2.15pm on 8 April.
Correspondence was then received from the solicitors for the husband on 6 April, indicating that the hearing of an urgent application was sought. The matter…
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- Case
- [2009] FamCA 365
- Decision Date
CaseChat Overview and Summary
The central legal issue before Murphy J was the principles governing the exercise of discretion to grant leave to re-open proceedings in family law matters. This involved considering the various factors that inform such a discretionary decision, including the potential prejudice that re-opening might cause to the parties involved. The court was required to balance the applicant's desire to re-open against the finality of judgments and the impact on the respondent.
Murphy J's reasoning applied established principles for re-opening cases, drawing on relevant case law and statutory provisions, including the *Family Law Act 1975* (Cth) and the *Evidence Act 1995* (Cth). The court considered the circumstances under which it is appropriate to depart from the usual finality of court orders, weighing factors such as the stage of proceedings, the nature of the new evidence or arguments sought to be introduced, and the potential for unfairness or injustice. Ultimately, the court found that the threshold for granting leave to re-open had not been met in this instance.
The application filed by the husband on 17 April 2009 was dismissed.
Orders
Orders of the court
1.
The Application in a Case filed by the husband on 17 April, 2009 is dismissed.
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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