Berrell and Berrell (No. 2) - [2013] FamCA 900

FAMILY COURT OF AUSTRALIA

BERRELL & BERRELL (NO. 2)

[2013] FamCA 900

FAMILY LAW – PROPERTY – Oral application – Where the Husband is seeking permission at trial to produce and rely on evidence of the content of documents not disclosed until two business days before trial – Where the Wife does not consent to the documents or their contents being presented at trial.

Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
APPLICANT:	Ms Berrell

RESPONDENT:

Mr Berrell

FILE NUMBER:

BRC

10381

2010

DATE DELIVERED:

13 November 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

13 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood and Ms Oakley

SOLICITOR FOR THE APPLICANT:

Files Stibbe Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodges

SOLICITOR FOR THE RESPONDENT:

James Noble Family Law

Orders

The Husband’s application, save in respect of the documents to which the Wife now does not object, for permission to tender documents and present evidence of their content is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrell & Berrell (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10381 of 2010

Ms Berrell

Applicant

And

Mr Berrell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

There is an application before me within the substantive property proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) for the Husband to have permission within the meaning of rule 13.14(a)(i) of the Family Law Rules 2004 to offer documents and present evidence of the content of documents not disclosed prior to Friday 8 November 2013. Rule 13.14(a)(i) allows a party to offer such documents, only if there is consent of the other party or with the Court’s permission. The Wife does not consent to the documents or their contents being presented in respect of MBO1 and MBO5 annexed to the Husband’s affidavit filed by leave this morning in support of his application for permission.
Chapter 13 of the Family Law Rules sets out the rules about the parties’ duty to make early, full and continuing disclosure of all information relevant to the case to each party and the Court. It regulates the timing, extent and method of discharging the duty of disclosure and how the duty is to be enforced.
The rule to which I have referred is one method of enforcement, that is, a party who fails to make disclosure in accordance with the rules runs the risk of not being permitted at a trial to offer not early disclosed documents or proof of their content. The documents the Husband seeks to now provide and offer evidence about relate to an alleged loan he says is owed to one Mr R, which has been in issue for a considerable time during these proceedings.
In his financial statement filed on 11 March 2011, and in…

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 Berrell and Berrell (No. 2)

Details

AGLC: Berrell and Berrell (No. 2) [2013] FamCA 900
Case: [2013] FamCA 900
Decision Date: 13 November 2013

CaseChat Overview and Summary

In *Berrell and Berrell (No. 2)*, Kent J of the Family Court of Australia considered an application by the Husband for permission to tender documents and present evidence of their content. The Wife objected to the tender of these documents.

The central legal issue before the court was whether the Husband should be granted leave to adduce certain documentary evidence, notwithstanding the Wife's objections. This required the court to consider the admissibility of the proposed evidence in the context of family law proceedings.

Kent J dismissed the Husband's application, except in relation to documents to which the Wife no longer objected. The court's reasoning, though not detailed in the provided text, led to the conclusion that the majority of the tendered documents and evidence were not admissible. The outcome was that the Husband was denied permission to present the disputed evidence.

Orders

Orders of the court

The Husband’s application, save in respect of the documents to which the Wife now does not object, for permission to tender documents and present evidence of their content is dismissed.

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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