Belcher and Belcher & Anor

Case [2019] FamCA 553


FAMILY COURT OF AUSTRALIA

BELCHER & BELCHER AND ANOR [2019] FamCA 553

FAMILY LAW – SUBPOENA – husband issuing subpoena to his ex-father-in-law – objections to subpoena on the grounds of breadth, relevance, fishing and others – recipient volunteering production of limited number of documents.

FAMILY LAW – RULE 15.23 – consideration of applicable authorities.

FAMILY LAW – COSTS – husband seeking his costs for being successful in obtaining documents.

FAMILY LAW – COSTS – father-in-law seeking reimbursement of expenses incurred in complying with the subpoena.

FAMILY LAW – RECUSAL – governing principles – recusal ordered.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 rr 15.16, 15.23, 26B.18
Federal Court Rules 2011 r 24.22
Ann Street Mezzanine Pty Ltd (in liq) v Beck (2013) 215 FCR 150
Bank of New South Wales v Withers (1981) 35 ALR 21
Chamberlain v Stoneham (1889) 24 QBD 113
Collins v Godefroy (1831) 109 ER 1040
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fuelxpress Ltd v L M Ericsson Pty Ltd (1987) 75 ALR 284
Goodwin v West (1639) 79 ER 1066
Green & Knowles [2010] FamCAFC 248
Hallet v Mears (1810) 104 ER 271
Hillier & Wootton [2013] FamCAFC 11
Kelleher v Anderson [2008] FamCA 113
Knight v FP Special Assets Ltd (1992) 174 CLR 178
Lucas Industries Ltd v Hewitt (1978) 45 FLR 174
Markoska v Markoska(Costs) (2011) 46 Fam LR 598
Masters & Cheyne [2016] FamCAFC 255
Moriarty v Moriarty (2009) 41 Fam LR 336
Pell v Daubeny (1850) 5 Exch 955
Pfenning & Snow [2014] FamCA 736
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Working Men’s Mutual Society (1882) 21 Ch D 831
SCVG & KLD (No 2) [2016] FamCAFC 99
Strahan v Strahan (Disqualification) (2009) 42 Fam LR 252
The Ibis [1921] P 255
Willis v Peckham (1820) 129 ER 821
Zanda & Zanda (2014) 293 FLR 1
APPLICANT: Mr Belcher
RESPONDENT: Mr Belcher
INTERESTED PARTY: Mr Gardener
FILE NUMBER: MLC 1705 of 2019
DATE DELIVERED: 16 August 2019
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Wilson J
HEARING DATE: 12 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Sweeney
SOLICITOR FOR THE APPLICANT: Lander & Rogers
COUNSEL FOR THE RESPONDENT: Mr TDOJ North of Senior Counsel
SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes
COUNSEL FOR THE INTERESTED PARTY: Ms E Swart
SOLICITOR FOR THE INTERESTED PARTY: Kennedy Partners

I Order by consent

  1. UPON BEING INFORMED by counsel –

    (a)the said Mr Gardener has this day provided to the husband in compliance with the subpoena the following –

    (i)the Trust Deed of the Mr Belcher Family Trust Deed

    (“BFT”);

    (ii)tax returns for the year 30 June 2015 to 30 June 2018 for the Mr Gardener Family Trust Fund;

    (iii)dividend statements for AA Pty Ltd for 1 July 2015 and 1 July 2016; and

    (b)Mr Gardener warrants to the husband, and the husband accepts the warrant that…

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AGLC
Belcher and Belcher & Anor [2019] FamCA 553
Case
[2019] FamCA 553
Decision Date

CaseChat Overview and Summary

In the matter of *Belcher and Belcher & Anor*, heard by Wilson J of the Family Court of Australia, the husband sought to issue a subpoena to his former father-in-law, Mr Gardener. Mr Gardener objected to the subpoena on several grounds, including its breadth, relevance, and the assertion that it constituted a "fishing expedition." Despite these objections, Mr Gardener voluntarily produced a limited number of documents. The proceedings also involved applications concerning costs, with the husband seeking his costs for successfully obtaining documents and Mr Gardener seeking reimbursement for expenses incurred in complying with the subpoena. A significant aspect of the case involved an application for recusal.

The primary legal issues before the court were the validity and scope of the subpoena issued to Mr Gardener, considering the objections raised. The court was also required to determine the principles governing applications for recusal and to consider the applicable authorities under Rule 15.23 of the Family Law Rules. Furthermore, the court had to address the competing claims for costs and expenses arising from the subpoena.

Wilson J considered the governing principles for recusal and ultimately ordered that the proceedings, and any further interlocutory applications, be heard by a different Justice of the Family Court of Australia. Regarding costs, the husband's costs of the subpoena were reserved. Mr Gardener was to be paid $5,873.78 by 4pm on 15 September 2019, presumably representing his expenses incurred in complying with the subpoena.

Orders

Orders of the court

20.

The husband’s costs of the subpoena are reserved.

21.

By 4pm on 15 September 2019, pursuant to r 15.23, Mr Gardener is to be paid $5 873.78.

22.

This proceeding and any further proceeding interlocutory application in it is to be heard by any Justice of the Family Court of Australia other than me.

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

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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