Carmel-Fevia & Fevia - [2010] FamCA 502

FAMILY COURT OF AUSTRALIA

CARMEL-FEVIA & FEVIA

[2010] FamCA 502

FAMILY LAW – DISCLOSURE – high wealth case – Is it necessary to fulfil all of the requirements of Chapter 13 of the Rules where the assets of a party far exceed the entitlement sought by the other? – Not if an application for relief from the rules is sought and it can be shown that there is no relevance in the disclosure pursued as it relates to the substantive application
FAMILY LAW – DISCLOSURE – Applications for permission to access the file of a party's previous marriage relationship – Purpose must be shown for the current proceedings
FAMILY LAW – COSTS – Application for a party to contribute to forensic accounting costs in circumstances where there are sufficient funds in the hands of the applicant to meet those costs – Application for an order refused
FAMILY LAW – COSTS – Application for order for costs as a result of an adjournment where late material filed required a response

Family Law Act 1975 (Cth)
Matrimonial Causes Act 1973 (UK)

Aon Risk Services Australia Limited v Australian National University (2009) HCA 27
Black and Kellner (1992) FLC 92-287
Briese and Briese (1986) FLC 91-713
Clauson and Clauson (1995) FLC ¶92-595
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-122
Guthrie & Rushton [2009] FamCA 1144
Hickey & Hickey & Attorney-General [2003] FamCA 395; (2003) FLC 93-143
In the Marriage of Morrison (1995) FLC 92-573
Liveseyv Jenkins (1985) 1 All ER 106
McCartney v Mills-McCartney [2008] EWHC 401 (Fam)
Naczek and Dowler [2009] FamCA 304
Norbis and Norbis (1986) FLC 91-712
Papadopoulos and Papadopoulos (No 2) [2007] FamCA 1683
Russell and Russell (1999) FLC ¶92-877
Strahan and Strahan [2009] FamCAFC 166
Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) [1985] FLR 1069
VAK and AK [2005] FamCA 803
Zschokke and Zschokke [1996] FamCA 79; (1996) FLC 92-693

APPLICANT:

Ms Carmel-Fevia

RESPONDENT:

Mr Fevia

FILE NUMBER:

MLC

4389

2008

DATE DELIVERED:

23 June 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

23 APRIL 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR TAUSSIG QC WITH MS VOHRA

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

MR KIRKHAM QC WITH MR THOMPSON

SOLICITOR FOR THE RESPONDENT:

SAXBYS LAWYERS

Orders

That the oral application of the wife for discovery, the filing of a financial statement by the husband and any further issues associated with the appointment of a single expert witness is adjourned to a date to be fixed by arrangement with my Associate.
That the oral application of the wife that the husband pay the costs of the wife’s expert accountant is dismissed.
That the application of the wife that the husband pay her costs reserved on 23 April 2010 is dismissed.
That pursuant to Rule 24.13 the wife and her legal practitioners have leave to inspect and copy the court documents, family reports and final judgment of the court of…

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: [2010] FamCA 502
Decision Date: 23 June 2010

CaseChat Overview and Summary

In proceedings between Carmel-Fevia and Fevia, the wife sought various orders from the court, including discovery, the filing of a financial statement by the husband, and issues relating to the appointment of a single expert witness. The husband opposed these applications. The court was also asked to determine whether the husband should pay the costs of the wife's expert accountant and whether the husband should pay costs previously reserved.

The primary legal issues before the court were whether to grant the wife's applications for discovery, the filing of a financial statement, and the appointment of a single expert witness. Additionally, the court had to determine the wife's applications for the husband to pay her expert accountant's costs and the costs reserved on a prior date.

Justice Cronin adjourned the wife's applications for discovery, the husband's financial statement, and issues concerning a single expert witness to a later date. The court dismissed the wife's application for the husband to pay her expert accountant's costs and her application for the husband to pay previously reserved costs. However, the wife and her legal practitioners were granted leave to inspect and copy court documents, family reports, and the final judgment from proceedings involving the husband and his former wife. The court also certified that it was reasonable to engage counsel, including senior counsel, to attend the proceedings.

Orders

Orders of the court

That the oral application of the wife for discovery, the filing of a financial statement by the husband and any further issues associated with the appointment of a single expert witness is adjourned to a date to be fixed by arrangement with my Associate.

That the oral application of the wife that the husband pay the costs of the wife’s expert accountant is dismissed.

That the application of the wife that the husband pay her costs reserved on 23 April 2010 is dismissed.

That pursuant to Rule 24.13 the wife and her legal practitioners have leave to inspect and copy the court documents, family reports and final judgment of the court of the proceedings between the husband and his former wife in proceedings numbered MLF ….

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

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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