Aarons & Aarons (No 2) - [2022] FedCFamC1F 331

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aarons & Aarons (No 2) [2022] FedCFamC1F 331

File number(s): MLC 6647 of 2021

Judgment of: WILSON J

Date of judgment: 9 May 2022

Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – late applications for disclosure and for expert evidence – applications refused.

Legislation:
Family Law Act 1975 (Cth) s 75(2)

Wills Act 1997 (Vic) s 12

Cases cited: Barns v Barns (2003) 214 CLR 169
Aarons & Aarons [2022] FedCFamC1F 294
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Hall v Hall (2016) 257 CLR 490
Hudson v Gray (1927) 39 CLR 473
Birmingham v Renfrew (1937) 57 CLR 666
The Juliana (1822) 165 ER 1560
White & Tulloch v White (1995) 19 Fam LR 696

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 9 May 2022

Place: Melbourne

Counsel for the Applicant: Mr P. Bick QC with
Mr A. Barbayannis

Solicitor for the Applicant: Strongman & Crouch

Counsel for the Respondent: Mr B. Geddes QC with
Mr C. Nehmy

Solicitor for the Respondent: Hargreaves Family Lawyers
ORDERS

MLC 6647 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR AARONS

Applicant

AND:
MS AARONS

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

9 MAY 2022

THE COURT ORDERS THAT:
1.The application for the appointment of a single expert to value real property known as E Town Estate is dismissed.
2.The application for a single expert to value real property and improvements of the land known as K Street, Suburb L is dismissed;
3.The application for the production of an unredacted copy of the will of the wife’s late mother is dismissed.
4.The application for the production of an unredacted copy of the wife’s father’s will is dismissed.
5.By noon on 11 May 2022 the parties must bring in minutes to give effect to these reasons.
6.Any affidavit or affidavits on which the husband relies in support of his adjournment application must be filed and served by noon on 11 May 2022.
7.Any affidavits in opposition to the husband’s application for an adjournment must be filed and served by noon on 13 May 2022.
8.The further hearing of this proceeding is adjourned to the commencement of the trial on 17 May 2022 for consideration of whether the trial should, in fact, commence or be adjourned to 8 to 12 August 2022 and, thereafter, 15 to 19 August 2022 or to such further or other day as may be agreed or ordered.
9.The costs of and incidental to today are reserved.

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)…

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 Aarons & Aarons (No 2)

Details

AGLC: Aarons & Aarons (No 2) [2022] FedCFamC1F 331
Case: [2022] FedCFamC1F 331
Decision Date

CaseChat Overview and Summary

The case of Aarons & Aarons (No 2) was heard by the Federal Circuit and Family Court of Australia (Division 1). The dispute involved applications by the husband for disclosure of certain documents and for expert evidence in relation to the valuation of certain properties, as well as the production of his wife's late mother's will and his father's will. The court was required to decide whether these applications were made within the appropriate timeframe and whether the documents or evidence sought were necessary for the fair determination of the proceedings.

The court found that the applications for expert evidence and disclosure were made unacceptably late, and therefore dismissed them. The court also dismissed the application for the production of the wife's late mother's will, as the wife had sworn to not having possession, power or control of such a document. The application for the production of the wife's father's will was also dismissed, as he was still alive and it was not possible to determine whether he had made a mutual will with his late wife.

The court's reasoning was based on the lateness of the applications, the unlikelihood that the mechanism for expert evidence would be able to run its course in time for the trial, and the wife's denial that she had possession of the will of her late mother. The court also found that the existence or otherwise of mutual wills could only be determined after a trial, when all circumstances were explored in length.

The final orders of the court were that the applications for expert evidence and disclosure were dismissed, as was the application for the production of the wife's late mother's will and her father's will. The further hearing of the proceeding was adjourned to the commencement of the trial on 17 May 2022, for consideration of whether the trial should commence or be adjourned to a later date. The costs of and incidental to the hearing were reserved.

Orders