ADEMIS & BEAUMAN & ORS - [2020] FCCA 1661

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADEMIS & BEAUMAN & ORS

[2020] FCCA 1661

Catchwords:
FAMILY LAW – Subpoena – Subpoena issued to third parties in relation to property dispute – objection to subpoena by third parties – consideration of scope of documents requested – held that scope of subpoenas too broad – subpoenas struck out in part – costs of compliance with subpoena – costs of subpoena hearing – consideration of s.102NA of the Family Law Act 1975.

Legislation:

Family Law Act 1975 ss.102NA, 117

Family Law Rules 2004
Federal Circuit Court Rules 2001 rr.1.06, 15A.10, 15A.11, 15A.14, Schedule 1

Cases cited:

Dillon & Dillon [2012] FamCA 319
Moriarty v Moriarty [2009] FamCA 369
Owen & Owen [2020] FamCA 90
Papadopoulos v Papadopoulos (No.2) [2007] FamCA 1683
Webb v Wheatly [2015] VSC 153
X Pty Ltd and Ors & Merhi [2015] FamCA 862

Applicant:

MR ADEMIS

Respondent:

MS BEAUMAN

Third Party Objector:	MS A BEAUMAN
Third party Objector:	MR ERSKINE

File Number:

MLC 5968 of 2019

Judgment of:

Judge Blake

Hearing date:

10 June 2020

Date of Last Submission:

10 June 2020

Delivered at:

Melbourne

Delivered on:

23 June 2020

REPRESENTATION

Advocate for the Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the Respondent:

Mr Carne

Solicitors for the Respondent:

Kenna Teasdale Lawyers

Counsel for the Objectors:

Mr Korman

Solicitors for the Objectors:

McMullan Solicitors

ORDERS

The Schedule to the subpoena issued on 5 May 2020 to Ms A Beauman be amended as set out in Annexure A attached to these Orders.
The Schedule to subpoena issued on 5 May 2020 to Mr Erskine be amended as set out in Annexure B attached to these Orders.
The time for compliance with the subpoenas issued to Ms A Beauman and Mr Erskine be extended to 14 days from the date of this Order.
Upon production of the documents described in the subpoena to Ms A Beauman and Mr Erskine, those documents be released to the legal practitioners for the parties and the parties for inspection and photocopying.
The Applicant pay to Ms A Beauman and Mr Erskine, the amount of $6,600 on production by them of the documents produced to the Court under Schedules A and B attached to these Orders.
The Applicant pay to Ms A Beauman and Mr Erskine the costs of objecting to the subpoenas to each of them in accordance with the scale set out in the Schedule 1 of the Federal Circuit Court Rules 2001 within 60 days of the date of this order.
Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Applicant under the cross-examination scheme.

AND THE COURT NOTES THAT:

A.The effect of order 7 is that the Applicant is banned from personally cross-examining the Respondent.
B.Pursuant to order 7 hereof, the Applicant do all acts and things necessary to make…

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 ADEMIS & BEAUMAN & ORS

Details

AGLC: Ademis and Beauman and Ors [2020] FCCA 1661
Case: [2020] FCCA 1661
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the matter of ADEMIS & BEAUMAN & ORS, Judge Blake considered applications concerning subpoenas issued to Ms A Beauman and Mr Erskine. The core of the dispute involved the scope and compliance of these subpoenas, as well as the costs associated with objecting to them.

The court was required to determine whether the existing subpoenas were appropriately drafted and whether the time for their compliance should be extended. Furthermore, the court had to consider the appropriate release of documents produced under the subpoenas and the entitlement of Ms Beauman and Mr Erskine to costs for their objections. A significant issue also arose regarding the Applicant's ability to cross-examine the Respondent, leading to a consideration of the application of section 102NA of the Family Law Act 1975 (Cth).

Judge Blake ordered amendments to the schedules of the subpoenas issued to Ms Beauman and Mr Erskine, extending the time for compliance by 14 days from the date of the order. The produced documents were to be released to the legal practitioners for the parties for inspection and photocopying. The Applicant was ordered to pay Ms Beauman and Mr Erskine $6,600 upon production of the documents, as well as their costs for objecting to the subpoenas. Crucially, the court invoked section 102NA(1)(c)(iv) and section 102NA(2) of the Family Law Act 1975 (Cth), effectively banning the Applicant from personally cross-examining the Respondent and requesting Victoria Legal Aid to provide assistance under the cross-examination scheme. The Applicant was directed to make the necessary application for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme.

Orders

Orders of the court

The Schedule to the subpoena issued on 5 May 2020 to Ms A Beauman be amended as set out in Annexure A attached to these Orders.

The Schedule to subpoena issued on 5 May 2020 to Mr Erskine be amended as set out in Annexure B attached to these Orders.

The time for compliance with the subpoenas issued to Ms A Beauman and Mr Erskine be extended to 14 days from the date of this Order.

Upon production of the documents described in the subpoena to Ms A Beauman and Mr Erskine, those documents be released to the legal practitioners for the parties and the parties for inspection and photocopying.

The Applicant pay to Ms A Beauman and Mr Erskine, the amount of $6,600 on production by them of the documents produced to the Court under Schedules A and B attached to these Orders.

The Applicant pay to Ms A Beauman and Mr Erskine the costs of objecting to the subpoenas to each of them in accordance with the scale set out in the Schedule 1 of the Federal Circuit Court Rules 2001 within 60 days of the date of this order.

Pursuant to section 102NA(1)(c)(iv) of the Family Law Act 1975 (Cth) (“the Act”), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Applicant under the cross-examination scheme.

AND THE COURT NOTES THAT:

A. The effect of order 7 is that the Applicant is banned from personally cross-examining the Respondent.

B. Pursuant to order 7 hereof, the Applicant do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his/her legal representation at Final Hearing.

C. The relevant application referred to in Notation A hereof is available to the parties at https://www.legalaid.vic.gov.au/find-legal-answers/commonwealth-family-violence-and-cross-examination-of-parties-scheme.

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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