COLVILLE & COLVILLE - [2014] FCCA 3138

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLVILLE & COLVILLE

[2014] FCCA 3138

Catchwords:
FAMILY LAW – Costs – failure to provide full and frank disclosure – conciliation conference unable to proceed – matter listed for undefended hearing and unable to proceed – contumelious disregard of disclosure obligations – obligation of the court to preserve and appropriately use its resources.

Legislation:

Family Law Act 1975, ss.106B, 117

Federal Circuit Rules 2001, rr.1.05, 14.02, 21.02, 21.03, 24.03, 24.04, pts. 14, 24, sch. 1
Family Law Rules 2004
Federal Circuit Court of Australia Act 1999, s.45

Burgoyne & Burgoyne (1978) FLC 90-467
Stanford & Stanford [2012] HCA 52
Haset Sali v SPC Ltd [1993] HCA 47
Aon Risk Services and ANU [2009] HCA 27
Stewart v Atco Controls Pty Ltd (in liq) (No.2) [2014] HCA 31
Allesch v Maunz [2000] HCA 40
Sheill & McMurr (No.2) [2014] FamCAFC 134
Black & Kellner [1992] FLC 92-287
Weir & Weir [1993] FLC 92-338
Tate & Tate (2000) FLC 93-047
Prantage & Prantage [2013] FamCAFC 105
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812

Applicant:

MS COLVILLE

Respondent:

MR COLVILLE

File Number:

PAC 5181 of 2013

Judgment of:

Judge Harman

Hearing date:

19 August 2014

Date of Last Submission:

19 August 2014

Delivered at:

Parramatta

Delivered on:

19 August 2014

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Lci Legal

Solicitors for the Respondent:

Mr Ng of Adams & Partners Lawyers

ORDERS

Pursuant to section 45(1) of the Federal Circuit Court Act 1999 and part 14 of the Federal Circuit Court Rules 2001 I declare that I am satisfied that formal discovery by the husband is appropriate.
The husband shall within 35 days of today’s date i.e. no later than close of business 30 September 2014, file and serve an Affidavit of documents verified by Affidavit with respect to all documents within his possession, custody or control as would be relevant to issues in dispute in these proceedings including but not limited to:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c)Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d)Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) 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 COLVILLE & COLVILLE

Details

AGLC: Colville and Colville [2014] FCCA 3138
Case: [2014] FCCA 3138
Decision Date: 19 August 2014

CaseChat Overview and Summary

In the matter of *Colville & Colville*, Judge Harman of the Federal Circuit Court of Australia considered an application for formal discovery. The dispute concerned financial matters between the husband and wife, with the wife seeking discovery of documents relevant to the resolution of these issues.

The primary legal issue before the Court was whether formal discovery by the husband was appropriate in the circumstances of the case. This involved determining the extent of the husband's disclosure obligations regarding his financial position and assets.

Judge Harman found that formal discovery was appropriate pursuant to section 45(1) of the *Federal Circuit Court Act 1999* and part 14 of the *Federal Circuit Court Rules 2001*. The Court ordered the husband to file and serve an affidavit of documents within 35 days, detailing all relevant documents in his possession, custody, or control. This included, but was not limited to, tax returns, superannuation statements, bank and credit card statements, property appraisals, and documents supporting his financial statement. The husband was also ordered to serve copies of these documents on the wife's attorneys, save for those subject to privilege.

Furthermore, the Court ordered the husband to pay the wife's costs of specific court appearances, fixed at $13,035, within 28 days. The matter was adjourned for further mention and directions, with the possibility of an undefended hearing if the husband failed to comply with the discovery orders.

Orders

Orders of the court

Pursuant to section 45(1) of the Federal Circuit Court Act 1999 and part 14 of the Federal Circuit Court Rules 2001 I declare that I am satisfied that formal discovery by the husband is appropriate.

The husband shall within 35 days of today’s date i.e. no later than close of business 30 September 2014, file and serve an Affidavit of documents verified by Affidavit with respect to all documents within his possession, custody or control as would be relevant to issues in dispute in these proceedings including but not limited to:

(a) Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);

(b) An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;

(c) Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;

(d) Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;

(e) Market appraisals with respect to any parcel of real estate in which any party has an interest;

(f) Any document proving or tending to prove any allegation contained in that party’s Financial Statement or Affidavit;

(g) Copies of market appraisals or computer site print outs as to value of:

(i) Any motor vehicle the value of which is not agreed.

The husband shall contemporaneous with service of his Affidavit of documents serve upon the wife’s attorneys a copy of each and every document enumerated within the Affidavit of documents, save those suggested to be the subject of any claim for privilege.

The husband shall within 28 days of today’s date pay the wife’s costs of and incidental to the appearances 2 June 2014, 23 July 2014 and 19 August 2014, such costs fixed in the sum of $13,035 and provided that payment is made within 28 days of today’s date interest shall not accrue thereupon, but after the expiration of that period:

(a) Interest shall then accrue upon that sum or such portion of it as remains outstanding at the rate prescribed by the Federal Circuit Court Rules 2001 and/or Family Law Rules 2004, whichever is the greater; and

(b) Such amount shall be a charge upon each and every asset of the husband and/or in which the husband has an interest whether in his personal or in a corporate capacity until the amount is paid (together with interest) in full.

The matter is adjourned to 23 October 2014 at 9.30am for further mention and directions (if the husband has complied with the above orders particularly as to discovery) and if the husband has not complied with the above orders particularly as to discovery undefended hearing of the wife’s Application.

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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