Munayallan and Scott and Ors

[2018] FamCA 1153

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT AND ORS [2018] FamCA 1153

FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties have not complied with procedural directions – Where proceedings have been affected by proceedings in the New South Wales Supreme Court – Where the relief sought includes final orders – Where it is agreed that the proceedings be listed for trial.
WIFE:	Ms Munayallan

HUSBAND: Mr Scott

RESPONDENT: Ms Scott

RESPONDENT: I Pty Ltd

RESPONDENT: Mr Phong

RESPONDENT: Ms Phong

FILE NUMBER: SYC 59 of 2010

DATE DELIVERED: 18 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 18 December 2018

REPRESENTATION

COUNSEL FOR THE WIFE: Mr Duc

SOLICITOR FOR THE WIFE: Remington & Co Solicitors

HUSBAND: In person

MS SCOTT: No appearance

I PTY LTD: Mr Scott Snr

COUNSEL FOR MR PHONG AND MS PHONG: Mr Zipser

SOLICITOR FOR MR PHONG AND MS PHONG: V Lawyers

Orders

1. The proceedings be listed for final hearing on all parenting and financial issues on a date to be agreed between the parties and the chambers of Justice Loughnan for five days commencing on either 13 May 2019, 20 May 2019 or 27 May 2019 or some such later date as is agreed in those circumstances.

2. The Court notes that there is no appearance today by or on behalf of the Independent Children’s Lawyer and that there is a single expert in the parenting proceedings whose convenience will need to be met.

3. The parties file and serve the evidence of all lay witnesses no later than 15 March 2019 or such later date as the parties agree on in writing.

4. The Court notes that the affidavit evidence of the lay witnesses is to be contained in one consolidated affidavit only from each deponent.

5. Not later than seven days before the first date of trial the parties provide to the chambers of Justice Loughnan and to each other a case outline document setting the orders sought if they are different to the most recently file application or response, a list of documents to be relied and a summary of the arguments to be made under the provisions of the Family Law Act 1975 (Cth) attracted by the applications.

6. In the event that any party becomes aware of any matter that would prevent the hearing commencing on the first date or continuing to conclusion on the last date that party is to forthwith restore the proceedings to the list to seek orders about the progress of the trial.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Munayallan & Scott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC59 of 2010

Ms Munayallan

Applicant

And

Mr Scott

Respondent

And

Ms Scott

Respondent

And

I Pty Ltd

Respondent

And

Mr Phong

Respondent

And

Ms Phong

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between husband and wife for property orders and parenting orders.  The proceedings have been affected by proceedings in the New South Wales Supreme Court.  A tranche of those proceedings has journeyed through that Court at first instance and there has been an appeal.  I understand that there is an issue reserved before a Justice of the Supreme Court in relation, I understand, to the fate of funds held on trust in that Court. 

2. One of the parties is a company, I Pty Ltd.  A principal of that company is the father of the husband in the family law proceedings.  He attended by telephone today, by leave, but the connection was poor and he could not be heard. 

3. These proceedings were set down for hearing commencing today.  Directions were made some time ago for the parties to provide to my associate case outline documents seven days before the commencement of the trial, together with notice of one affidavit from each witness and a summary of the arguments.  Those directions were made on 6 September 2018.  No party complied with those directions.

4. I understand that in the last week or so there was communication with my chambers about an adjournment of the trial because of the personal circumstances of the husband and his parents.  I gather that they were evicted from a property that has been the subject of the Supreme Court proceedings.  That application was communicated to the other parties and was opposed.  As there was no agreement to the adjournment the matter remained listed today for hearing.

5. As I say, I could not hear Mr Scott senior for I Pty Ltd.  The husband appeared in person on the telephone and pressed his application for an adjournment.  The application continued to be opposed on behalf of the wife and on behalf of the Phams, who are the purchasers of the subject property and who were parties to the Supreme Court proceedings. 

6. There has been a discussion today about the best way to deal with two applications made in August of this year by Mr Scott and by I Pty Ltd against the Phams and others and the substantive proceedings as between husband and wife as to property settlement.  There seems to be some dispute as to the extent to which the Phams are parties to those proceedings.  I am told that they were made parties by a Judge of the Federal Circuit Court.  Whether the purpose of that joinder has been achieved by the outcomes in the Supreme Court proceedings I am not quite sure, but we do know that they are named as parties in the applications in a case. 

7. The question is whether the applications in a case should again be adjourned.  The relief sought there includes relief in the nature of final relief.  The preference on behalf of the respondents today, the Phams and the wife, is that the proceedings be listed on one occasion for a trial.  That is not opposed by Mr Scott, the husband, and I can see the wisdom of that proposal.  Frankly, there is a clear threshold issue in relation to whether all or any of the claims against the Phams have already been determined in another Court.  If it is found to be the case, then those proceedings will not have any success and the property proceedings will continue without those issues. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 December 2018.

Associate: 

Date:  12 March 2019