S v S [2023] NSWDC 345

S v S [2023] NSWDC 345

The hearing date was vacated because the Federal Circuit and Family Court of Australia property adjustment hearing was likely to consider some of the same factual issues concerning alleged domestic violence if a Kennon adjustment was sought; any findings in the District Court intentional tort hearing could cut across findings in the Family Court, creating a real possibility of inconsistent findings, and the Family Court matter might be reserved while the District Court matter proceeded. In those circumstances, vacation of the District Court hearing date was in the interests of justice.

Jurisdiction
Australia
Judgment Date
23 August 2023
Procedural Posture
Civil Proceedings for Intentional Tort Claims Alleging Trespass to the Person, Assault and Battery Between Separated Spouses / Notice of Motion Filed 11 August 2023 Seeking Vacation of Final Hearing Listed to Commence 30 October 2023
Outcome
Notice of Motion granted; final hearing commencing 30 October 2023 vacated and matter listed for directions.
Legal Topics
['vacation of Hearing Date' 'intentional Torts' 'alleged Spousal Abuse' 'property Adjustment Proceedings' 'risk of Inconsistent Findings' 'accrued Jurisdiction of the Federal Circuit and Family Court of Australia' 'issue Estoppel']
['practice and Procedure' 'torts' 'family Law'] ['vacation of Hearing Date' 'intentional Torts' 'alleged Spousal Abuse' 'property Adjustment Proceedings' 'risk of Inconsistent Findings' 'accrued Jurisdiction of the Federal Circuit and Family Court of Australia' 'issue Estoppel']

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Procedural Posture

Civil Proceedings for Intentional Tort Claims Alleging Trespass to the Person, Assault and Battery Between Separated Spouses / Notice of Motion Filed 11 August 2023 Seeking Vacation of Final Hearing Listed to Commence 30 October 2023

Legal Issues

  1. 1 ['Whether there was good reason to vacate the District Court final hearing listed to commence on 30 October 2023.' 'Whether factual issues concerning alleged domestic violence in the District Court intentional tort proceedings would also arise in Federal Circuit and Family Court of Australia property adjustment proceedings.' 'Whether the possibility of inconsistent factual findings justified vacating the District Court hearing date.']

Ratio Decidendi

The hearing date was vacated because the Federal Circuit and Family Court of Australia property adjustment hearing was likely to consider some of the same factual issues concerning alleged domestic violence if a Kennon adjustment was sought; any findings in the District Court intentional tort hearing could cut across findings in the Family Court, creating a real possibility of inconsistent findings, and the Family Court matter might be reserved while the District Court matter proceeded. In those circumstances, vacation of the District Court hearing date was in the interests of justice.

Court Disposition

Notice of Motion granted; final hearing commencing 30 October 2023 vacated and matter listed for directions.

Orders

  • ['The hearing commencing 30 October 2023 is vacated.' 'The costs of the Notice of Motion and the costs thrown away by reason of the vacation of the hearing date are to be costs in the cause.' 'The matter is listed for directions on 4 December 2023 before the List Judge at 9.30am.']