A & A and Ors - [2005] FamCA 561

[2005] FamCA 561

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE MLF1044 of 2005

IN THE MATTER OF:

A (Husband)

and

A (Wife)

and

A (Secondnamed
Respondent)

and

The A Group of Companies & A (Applicants)

JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing: 27 May 2005

Date of Judgment: 9 June 2005

Appearances:

No appearance by or on behalf of the husband

Mr Strum of counsel, instructed by Taussig Cherrie & Associates, Solicitors, DX 38236 Flagstaff, on behalf of the wife

Mr Kirkham QC, with Mr Dickson of counsel, instructed by Messrs Herbert Geer & Rundle, Solicitors, DX 428 Melbourne, on behalf of the secondnamed Respondent and the Applicants

INTRODUCTION

These proceedings are constituted by a Form 2 Application in a Case filed by V (“the husband’s father”) and The A Group of Companies (particularised in Schedule “A” to the said application) (“the Applicants”) to Review, pursuant to Rule 18.08 of the Family Law Rules (2004) paragraph 5 of the orders made by Registrar Marrone on 12 May 2005. In addition, the Applicants seek an order that a subpoena issued by the wife and filed on 27 April 2005 directed to The Managing Partner of an accounting firm (“the Group Accountants”) be struck out.
Part E of that subpoena sought production of the documents in the possession, custody or control of the Group Accountants and referred to in Schedule 1, which is in the following terms:
“Schedule 1
For the period as and from 1 January 2002 all:
·correspondence
·working papers
·accounts for work done by you
·files
·journals
·ledgers
·cash books
·computer printouts and reports
·taxation returns
·notes to accounts
·depreciation schedules
·annual returns
·trading profit and loss accounts
·balance sheets
·member's statements
·trust deeds
·variation to trust deeds
·company constitutions
·beneficiary loan account ledgers
·business activity statements
·instalment activity statements
·company registers
·secretarial files
·minutes
·deeds
·loan agreements
·deeds of agreement
·records of telephone conversations
in relation to each of the following:-
A.        1.        S
2.        A & M Pty Ltd
3.        AM Holdings Pty Ltd
4.        AC Pty Ltd
5.        ACS Pty Ltd
6.        AEH Pty Ltd
7.        A Holdings Pty Ltd
8.        ASI Pty Ltd
9.        ASC Pty Ltd
10.      ASC (SA) Pty Ltd
11.      AS Pty Ltd
12.      A Pty Ltd
13.      ISS Pty Ltd
14.      MI Pty Ltd
15.Any other corporation (other than a public company), partnership, joint venture business or other commercial activity in relation to which S has a beneficial interest or entitlement.
16.Any trust:-
(i)of which S is or was the appointor, trustee or guarantor including but not limited to the SA Family Trust established by deed of settlement dated 4 March 2002;
(ii)of which S, any child of S and/or a spouse of S is or was an eligible beneficiary as to capital or income;
(iii)of which a corporation is or was an eligible beneficiary as to capital or income and S, and/or child and/or spouse of S is or was a shareholder or director;

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 A & A and Ors

Details

AGLC: A & A and Ors [2005] FamCA 561
Case: [2005] FamCA 561
Decision Date: 9 June 2005

CaseChat Overview and Summary

The case of *A & A and Ors* concerned an application for leave to appeal a decision of the Federal Circuit and Family Court of Australia. The applicants, A & A and Ors, sought to challenge an interim order made by the primary judge. The dispute revolved around the appropriate interim arrangements for children in circumstances where allegations of family violence had been made.

The central legal issue before Guest J was whether the primary judge had erred in making the interim orders, specifically concerning the children's living arrangements and the extent of the father's contact. The court was required to consider whether the interim orders were in the best interests of the children, taking into account the allegations of family violence and the need for their safety and well-being.

Guest J found that the primary judge had not erred in her approach to the interim orders. Her Honour applied the correct legal principles, including the paramountcy of the children's best interests and the need to consider the risk of harm. The court determined that the interim orders made by the primary judge were a proportionate and appropriate response to the evidence before her at that stage, balancing the competing interests of the parties and, most importantly, the safety and welfare of the children. Leave to appeal was therefore refused.

Orders