Bondelmonte & Bondelmonte - [2018] FamCAFC 179

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE AND ORS

[2018] FamCAFC 179

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Discovery – Inspection of documents – Where the appellant appeals orders as to the inspection of documents relating to proceedings in which freezing orders where sought – Where the appellant was not a party to those proceedings – Where the appellant seeks a variation of the primary judge’s orders to include additional documents – Where the findings of the primary judge found to be clear and encompassing documents relating to the freezing order against the appellant – However where the primary judge failed to include seven documents – Where these seven documents uncontentiously referred to the proceedings against the appellant – Where error found – Leave to appeal granted – Appeal allowed in part – Order refusing leave to inspect certain documents varied to add the documents erroneously excluded.

Family Law Act 1975 (Cth) s 79A

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPELLANT:

Ms LL Bondelmonte

FIRST RESPONDENT:

Ms Bondelmonte

SECOND RESPONDENT:

Mr V Bondelmonte

THIRD RESPONDENT:

Q Finances Pty Limited

FOURTH RESPONDENT:

KK Pty Ltd

FIFTH RESPONDENT:

D1 Pty Ltd

SIXTH RESPONDENT:

ABC Finances Pty Limited

FILE NUMBER:

SYC

4839

2011

APPEAL NUMBER:

2018

DATE DELIVERED:

18 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

13 August 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 November 2017

LOWER COURT MNC:

[2017] FamCA 924

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT:

Braddon Marx Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Todd

SOLICITOR FOR THE SECOND

RESPONDENT:

Braddon Marx Lawyers

SOLICITOR FOR THE THIRD, FOURTH,

FIFTH AND SIXTH RESPONDENTS:

Brown Wright Stein Lawyers

Orders

Leave to appeal the orders of Watts J made on 15 November 2017 is granted.
The appeal against Order 2 made by Watts J on 15 November 2017 is upheld and Order 2 is varied to include the following documents:
(a)Affidavit of Ms TT sworn 12 April 2016;
(b)Interlocutory Application for freezing orders against Ms LL Bondelmonte and ABC Finances Pty Limited dated 15 February 2016;
(c)Interlocutory Application by Mr V Bondelmonte and Ms LL Bondelmonte to set aside subpoena to ANZ and Notices to Produce dated 17 March 2016;
(d)Notice to Produce on Ms LL Bondelmonte dated 23 February 2016;
(e)Applicants’ Submissions for additional freezing orders dated 16 February 2016;
(f)Subpoena to ANZ dated 24 February 2016; and
(g)All documents produced to the Court pursuant to the subpoena on ANZ dated 24 February 2016.
The appellant file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of this order.
The first respondent file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of receipt of the appellant’s costs submissions.
That the third, fourth, fifth and sixth…

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

AGLC: Bondelmonte & Bondelmonte [2018] FamCAFC 179
Case: [2018] FamCAFC 179
Decision Date: 18 September 2018

CaseChat Overview and Summary

The appellant in this case sought an appeal against certain orders made by Watts J, which related to the inspection of documents in proceedings where freezing orders were sought. The appellant was not a party to those proceedings but sought to vary the primary judge's orders to include additional documents. The findings of the primary judge were deemed clear and encompassed documents relating to the freezing order against the appellant, but the primary judge had failed to include seven documents that clearly referred to the proceedings against the appellant. This led to an error in the primary judge's orders.

The court identified the legal issue to be whether the primary judge's orders were correct in excluding certain documents. The court found that the primary judge had indeed made an error in excluding seven documents that were relevant to the proceedings against the appellant. As a result, the appeal was allowed in part, and the orders of the primary judge were varied to include the seven documents that had been erroneously excluded.

The court granted leave to appeal the orders of Watts J and varied the appeal to include the seven documents that had been erroneously excluded. The appellant was required to file and serve submissions as to costs of the appeal, consisting of no more than five pages, within 14 days of this order. The first respondent was also required to file and serve submissions as to costs of the appeal, consisting of no more than five pages, within 14 days of receipt of the appellant’s costs submissions. The third, fourth, fifth and sixth respondents were required to file and serve submissions as to costs of the appeal, consisting of no more than five pages, within 14 days of receipt of the appellant’s costs submissions. The form of the order was subject to the entry of the order in the Court's records.

Orders

Orders of the court

Leave to appeal the orders of Watts J made on 15 November 2017 is granted.

The appeal against Order 2 made by Watts J on 15 November 2017 is upheld and Order 2 is varied to include the following documents:

(a) Affidavit of Ms TT sworn 12 April 2016;

(b) Interlocutory Application for freezing orders against Ms LL Bondelmonte and ABC Finances Pty Limited dated 15 February 2016;

(c) Interlocutory Application by Mr V Bondelmonte and Ms LL Bondelmonte to set aside subpoena to ANZ and Notices to Produce dated 17 March 2016;

(d) Notice to Produce on Ms LL Bondelmonte dated 23 February 2016;

(e) Applicants’ Submissions for additional freezing orders dated 16 February 2016;

(f) Subpoena to ANZ dated 24 February 2016; and

(g) All documents produced to the Court pursuant to the subpoena on ANZ dated 24 February 2016.

The appellant file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of this order.

The first respondent file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of receipt of the appellant’s costs submissions.

That the third, fourth, fifth and sixth respondents file and serve submissions as to costs of the appeal, consisting of no more than five (5) pages, within 14 days of receipt of the appellant’s costs submissions.

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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