Borman and Hunter

[2018] FamCA 885

FAMILY COURT OF AUSTRALIA

BORMAN & HUNTER [2018] FamCA 885

FAMILY LAW – PRACTICE AND PROCEDURE – where the proceedings involve a charitable trust – where the Respondent seeks relief under s 106B of the Family Law Act 1975 (Cth) in relation to the trust – where the relevant Commonwealth entity and the Attorney-General for the State of Queensland were notified of the existence of proceedings at the conclusion of the first day of trial – where the Respondent is ordered to serve the relevant Commonwealth entity and the Attorney-General for the State of Queensland with material relied upon by each party, a copy of the Exhibits and the Reasons for Judgment and cause a copy of the transcripts to be provided.

Family Law Act 1975 (Cth)

APPLICANT: Mr Borman

RESPONDENT:

Ms Hunter

by Ms Wallace as her Case Guardian

FILE NUMBER: BRC 2660 of 2015

DATE DELIVERED: 30 October 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 30 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson of Queen's Counsel with Mr Cameron of Counsel

SOLICITOR FOR THE APPLICANT: Alex Mackay & Co

COUNSEL FOR THE RESPONDENT: Mr Galloway of Counsel

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

Orders

IT IS ORDERED THAT

1. By 4.00 pm on 31 October 2018: the Respondent serve the Australian Charities and Not-for-profits Commission (“ACNC”) and the Attorney-General for the State of Queensland with the affidavit material relied upon by each party in the proceedings and a copy of the Exhibits.

2. The parties have liberty to uplift the Exhibits for the purpose of copying where necessary.

3. A copy of the transcript of the proceedings from the hearing on 29, 30 and 31 October 2018 be obtained by the Court and, once obtained, be marked as an Exhibit in the proceedings for purpose of identification and be provided to the parties.

4. The Respondent thereafter cause a copy of the transcripts of 29, 30 and 31 October 2018 to be provided to the ACNC and the Attorney-General for the State of Queensland.

AND IT IS FURTHER ORDERED THAT

1. By 4:00 pm on 31 October 2018: the Respondent file an Amended Outline of Case.

AND IT IS DIRECTED THAT

1. After the Ex Tempore Reasons for Judgment delivered today are provided to the parties, the Respondent serve a copy of the same on the Attorney-General for the State of Queensland and the ACNC.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Borman & Hunter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2660 of 2015

Mr Borman

Applicant

And

Ms Hunter by Ms Wallace as her Case Guardian

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have thought a great deal, in the time that I have stood down, about how best and most appropriately to progress the hearing in which the parties have embarked. 

2. Despite having earlier said that I did not see how the matter could proceed with the cross-examination of Ms Hunter without first affording to the Attorney-General for the State of Queensland and the Commonwealth authority the opportunity either to seek to intervene or to be joined and/or following that, to be heard in relation to the orders sought in relation to the Foundation, I have, after balancing the competing requirements to afford justice as between these parties in their litigation and justice to the objects of the charitable trust (the Foundation) determined that it will be appropriate and possible to do that if I embark on the following course:

   a)that is, to consider Mr Wilson’s client’s case closed, but for any issue which is associated with whatever position might ultimately be taken by the Commonwealth organisation and the Attorney-General for Queensland;

   b)to continue with the hearing tomorrow morning, at which time Ms Hunter will be made available, as I understand it, for cross-examination in person;

   c)to require that the Commonwealth organisation and the Queensland Attorney-General be served forthwith with a copy of the affidavit material relied upon by each party in the proceeding and a copy of the Exhibits which, at this stage, form the evidence before the Court;

   d)to provide to the parties liberty to uplift those Exhibits for the purpose of copying where necessary;

   e)to require that that occur by 4.00 pm tomorrow afternoon, in terms of the provision of material;

   f)to obtain a transcript of the proceedings to date and tomorrow and, once obtained, to mark that transcript as an Exhibit in the proceedings for the purpose of identification and to order, once it has been obtained, that it be provided to the parties and to the Attorney-General for the State of Queensland and the Commonwealth authority; and

   g)to note that that person and that entity will be afforded an opportunity to consider their respective positions,

   because, at the conclusion of tomorrow’s evidence, I will then adjourn the matter part-heard to dates either towards the end of November or in the first week of December.

3. In that way, it seems to me that the objects of the Trust who are the group in respect of whom the Attorney-General for Queensland and/or the Commonwealth entity would appear and in respect of whose interests they would prosecute would do so knowing that, as between the parties at present, Mr Borman’s case involves the contention that the Foundation is a charitable trust and that it should remain in existence. 

4. In that sense, there is already, contained within this litigation, a party advocating for the position that would be most likely to be taken by the Attorney-General for the State of Queensland and/or the Commissioner in seeking to uphold, for the benefit of the objects of the trust, its terms and purpose.

5. Any prejudice that might be thought to flow to the Attorney-General for the State of Queensland and the Commonwealth entity can, it seems to me, be redressed by, of course, affording them an opportunity, if they wish to participate in the proceedings, to require the recall of either or both of Mr Borman and/or Ms Hunter; and also, if necessary, to at least consider any application, if needed, for any further re-examination of those witnesses by their respective Counsel.

6. By following this course, it seems to me, given the circumstances of this case and, in particular, Ms Hunter’s age and health, I will maximise the prospect that any cross-examination of her, as is sought by Mr Wilson (who appears on behalf of Mr Borman) can occur and that her evidence can be, as it were, “captured”, I will, therefore, minimise the risk that that would not be the case. 

7. Any prejudice to those who have more lately been made aware of the existence of the litigation can, I think, be remedied, as I have said, by the fact that they will have the opportunity themselves of seeing the evidence that has thus far been taken; they will have the benefit of being able to consider that in the course of their determinations about their future actions. 

8. For those reasons, then, I intend to proceed tomorrow to take the cross-examination of Ms Hunter. 

9. I will also direct that a copy of these oral reasons, once transcribed, be provided to the Attorney-General for the State of Queensland and the Commonwealth entity so that they can be appraised of the reasoning which has underpinned my decision to proceed, albeit in the absence, in a personal sense, of the Attorney-General for Queensland, in particular, because, as I have said, I am confident that, should there be any particular prejudice identified on behalf of the Attorney-General, that can be remedied by recall and/or opportunities, if needed, to reopen. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 October 2018.

Associate:     

Date:              30 October 2018