Bell and Bell - [2009] FMCAfam 595

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BELL & BELL

[2009] FMCAfam 595

FAMILY LAW – Property – legal professional privilege – whether privilege has been waived by disclosure waiver – whether privilege has been waived by issue waiver.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), ss.90C, 90G (1)(b)(i) and (ii),90K(1)(a), 90K(1)(c),
Trade Practices Act1974 (Cth) ss.51A, 51AC, 52

Australian Unity Health Ltd v Private Health Insurance Administration Council [1999] FCA 1770
AWB Ltd v Cole and Another (No.5) (2006) 155 FCR 30
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
Blomley v Ryan (1956) 99 CLR 362
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Derry v Peek (1889) 14 App Cas 337
Macquarie Bank Limited v B [2006] FamCA 1052
Mann v Carnell (1999) 201 CLR 1
Naylor v Naylor [2006] FamCA 1437
Newcrest Mining (WA) Limited v Commonwealth of Australia and Another (1993) 40 FCR 507
Osland v Secretary, Department of Justice (2008) 234 CLR 275
Peninsula Development Group (Tannum Sands) Pty Ltd v Retail Shop Leases Tribunal & Anor [2006] QSC 398
Secretary, Department of Justice v Osland (2007) 95 ALD 380

Applicant:

MS BELL

Respondent:

MR BELL

File Number:

BRC 1150 of 2009

Judgment of:

Burnett FM

Hearing date:

24 April 2009

Date of Last Submission:

24 April 2009

Delivered at:

Brisbane

Delivered on:

24 April 2009

REPRESENTATION

Counsel for the Applicant:

Mr North SC

Solicitors for the Applicant:

Jones Mitchell Lawyers

Counsel for the Respondent:

Mr Forrest

Solicitors for the Respondent:

Hartley Healy

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

That in this Order, unless the context necessarily requires “children” means [X], born in 1998 (now 10 years of age) and [Y], born in 2001 (now 7 years of age).
That within 28 days of this Order, the parties attend upon SUSAN LEWIS for the purpose of the preparation of a Family Report, to be paid for by the parties, to ascertain the appropriate care arrangements for the children.
That until further Order, MR BELL and MS BELL, their Servants and/or Agents be and are hereby restrained from removing or causing or allowing the children, [X] (born in 1998) and [Y] (born in 2001) to be removed from the Commonwealth of Australia, unless agreed in writing by both parties thirty (30) days prior to the proposed departure date and/or an Order of the Court.
That the Marshall and all officers of the Australian Federal Police and the Police Forces of the States and Territories are requested and authorised to give effect to these Orders by placing the name of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s name on the Watch List until further Order of the Court.
The solicitors for the Father must immediately notify the Marshall and the Australian Federal Police Family Law team at Brisbane of these Orders by telephone and…

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.

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Details

Case: [2009] FMCAfam 595
Decision Date: 24 April 2009

CaseChat Overview and Summary

The case of Bell and Bell was heard by Burnett FM in the Federal Magistrates Court of Australia. The applicant, Ms Bell, sought relief to set aside two binding financial agreements entered into with Mr Bell pursuant to s.90K of the Family Law Act 1975 (Cth). The wife claimed the agreements were obtained by fraud or were unconscionable. The husband sought orders for disclosure of documents and advice from the wife's former solicitors. The court found that the wife's conduct constituted a disclosure waiver of legal professional privilege in relation to advice given on 16 September 2008 and an issue waiver in relation to advice given prior to the 2007 agreement. The court declined to transfer the matter to the Family Court, finding the issues of fraud and unconscionability were well-established concepts. The wife was ordered to pay the husband's costs of the application. The court limited the scope of disclosure to the specific advice in question and directed that the s.90K application be dealt with separately.

Orders