Cornish & Cornish (No. 2) - [2020] FamCA 1090

FAMILY COURT OF AUSTRALIA
Cornish & Cornish (No. 2) [2020] FamCA 1090

File number(s): MLC 12589 of 2019

Judgment of: BENNETT J

Date of judgment: 14 December 2020

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – where parents have litigated extensively in this court and in the state court – where parties face difficult issues but must observe some proportionality – where is recommended that this matter be considered for the appointment of a judicial case manager

FAMILY LAW – INJUNCTIVE RELIEF – where wife is diagnosed with a serious cancer condition which is no longer in remission – where wife seeks an injunction to prevent the husband from seeking details of her medical condition and prognosis or discussing her shortened life expectancy with any person – where interim injunction granted subject to conditions including the wife authorising her treating oncologist to provide reports each three months as well as on any deterioration of the wife’s condition

FAMILY LAW – PARENTING – where the parties 10 year old daughter has not been informed of downturn in wife’s medical condition and the wife proposes to delay telling the child that she is not in remission until after Christmas where injunction is granted consistent with the wife’s position

FAMILY LAW – FINANCIAL – where husband seeks a variation to spousal support orders – where there is insufficient evidence upon which to be satisfied of a change in circumstances – where husband’s financial circumstances are unclear – where husband’s application refused but liberty granted for husband to apply at the final hearing for spousal maintenance paid the wife henceforth be retained by the wife for her own use and benefit.

FAMILY LAW – COSTS – where husband seeks costs allegedly thrown away by virtue of the wife seeking an urgent sale of real – where court not satisfied that it is proper to make an order

Legislation: Family Law Act 1975 (Cth)

Number of paragraphs: 119

Date of hearing: 14 December 2020

Place: Melbourne

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Salamanca

Solicitor for the Respondent: Taussig Cherrie Fildes
ORDERS

MLC12589 of 2019

BETWEEN:
MR CORNISH

Applicant

AND:
MS CORNISH

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

14 DECEMBER 2020

THE COURT ORDERS THAT:
Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 21 January 2021 (Paragraph 14 of the Order is deleted)
1.The husband, by himself, his servants or agents be and is hereby restrained by injunction from:
(a)Discussing with, or disseminating to, any person (including the parties’ child, Z born … 2009 (“Z”)) any information or document in relation to the wife’s health and cancer treatment, save for:
(i)his own legal representative;
(ii)the child’s treating psychologist, Mr H;
(iii)the mediator of the financial aspects of this case;
(iv)the coordinator of any post-separation parenting course undertaken by the husband.

(b)causing subpoenas to be issued to any of the wife’s treating medical practitioners or in relation to the wife’s medical records, diagnosis, prognosis or…

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 Cornish & Cornish (No. 2)

Details

AGLC: Cornish & Cornish (No. 2) [2020] FamCA 1090
Case: [2020] FamCA 1090
Decision Date: 14 December 2020

CaseChat Overview and Summary

In the matter of *Cornish & Cornish (No. 2)*, Bennett J of the Family Court of Australia considered applications by both the husband and wife. The wife sought urgent injunctive relief concerning her serious cancer diagnosis and its disclosure, as well as orders relating to their child. The husband sought a variation to spousal support orders and costs. The parties had a history of extensive litigation in both the Family Court and state courts.

The court was required to determine several key issues. These included whether to grant an injunction restraining the husband from discussing the wife's medical condition and prognosis with any person, including their child, and from issuing subpoenas to her medical practitioners without leave. The court also had to consider the wife's proposal to delay informing their ten-year-old daughter about her condition not being in remission until after Christmas. Furthermore, the court needed to assess the husband's application for a variation of spousal support orders, considering the evidence of changed circumstances, and determine the husband's claim for costs allegedly thrown away.

Bennett J granted an interim injunction restraining the husband from discussing the wife's health and treatment with most individuals, with specific exceptions for his legal representatives, the child's treating psychologist, and a mediator. The court also ordered that the husband be prevented from issuing subpoenas to the wife's medical practitioners without judicial leave. The wife was permitted to delay informing their daughter of her condition until after Christmas, with a requirement to promptly inform the husband once she had done so. The husband's application to vary spousal support was dismissed due to insufficient evidence of changed circumstances, though he was granted liberty to apply at the final hearing for spousal maintenance paid henceforth to be retained by the wife for her own use. The husband's application for costs was also refused. The court also made orders for the independent representation of the child's interests.

Orders

Orders of the court

MLC12589 of 2019

BETWEEN:

MR CORNISH

Applicant

AND:

MS CORNISH

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

14 DECEMBER 2020

THE COURT ORDERS THAT:

Amended Pursuant to Rule 17.02 of the Family Law Rules 2004 – 21 January 2021 (Paragraph 14 of the Order is deleted)

1. The husband, by himself, his servants or agents be and is hereby restrained by injunction from:

(a) Discussing with, or disseminating to, any person (including the parties’ child, Z born … 2009 (“Z”)) any information or document in relation to the wife’s health and cancer treatment, save for:

(i) his own legal representative;

(ii) the child’s treating psychologist, Mr H;

(iii) the mediator of the financial aspects of this case;

(iv) the coordinator of any post-separation parenting course undertaken by the husband.

(b) causing subpoenas to be issued to any of the wife’s treating medical practitioners or in relation to the wife’s medical records, diagnosis, prognosis or treatment without first obtaining the leave of a judge of the Family Court of Australia to do so.

2. The wife inform the husband promptly of her having informed Z of her further diagnosis and do so by the Talking Parents app.

3. The wife authorise and direct, and does hereby authorise and direct, her treating oncologist to provide a report at intervals not exceeding every three months and/or upon any sudden deterioration in the wife’s health, such reports to address the wife’s prognosis and treatment in respect to her medical condition.

4. Pursuant to section 68L(2) of the Family Law Act 1975 the interests of the child Z born … 2009 (“the child”) be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the child by the next return date and in the meantime to introduce herself/himself to the child’s psychologist, counsellor and the mother’s oncologist.

5. Forthwith upon appointment by the said Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

6. Within 48 hours of notification of such appointment the solicitor’s for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

7. The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any single expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings unless specifically referred to in final orders and specifically discharged.

8. The husband’s oral application for the appointment of a single expert to report on the wife’s medical condition be and is hereby dismissed.

9. The order appointing the single expert valuer be dismissed.

10. The husband’s application for a discharge of the spousal maintenance and other expenses order be dismissed.

11. Pursuant to Rule 15.52 of the Family Law Rules 2004, the wife have leave to file evidence from an appropriately qualified person as to the value of the parties’ interests in B Company (and any associated entity, including but not limited to the J Trust) as at 30 June 2020.

12. There be liberty to the husband to seek at the final hearing for alteration of property interests that spousal maintenance paid by him to the wife and additional payments made by him to the wife on account of the wife and the child henceforth pursuant to paragraph 6 of the order made on 14 January 2020 be characterised as part payment of property settlement.

13. That there be liberty to the wife to issue a subpoena to K Accountants to produce documents.

14. Deleted.

15. The parties do all acts and things necessary to postpone the mediation on financial issues to be convened by the Honourable Peter Young AM QC from January 2021 until after the legal and equitable interest of the parties in property has been agreed or all evidence has been filed in that respect.

16. I reserve the costs of an incidental to this day.

17. My reasons for decision be transcribed and, subject to refinement or expansion by me and editing, be published to the parties in due course.

18. Any party who is represented by lawyers is at liberty to issue an unlimited number of subpoenas to produce documents.

19. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.

IT IS DIRECTED THAT:

20. The Trust Deed of the L Trust be marked Exhibit “W1” and remain on the Court file.

21. The tax invoice from M Pty Ltd to Mr Cornish dated 17 February 2020 be marked Exhibit “W2” and remain on the court file.

22. The email from Mr N of M Pty Ltd dated 1 July 2020 at 5.19 pm and attached Terms of Call Option Issue documents be marked Exhibit “W3” and remain on the Court file.

23. The B Company Profit & Loss Statement from 1 July 2019 to 30 June 2020 be marked Exhibit “W4” and remain on the Court file.

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

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The matters requiring determination today and to which these reasons are directed, in order, are:(1)The wife’s urgent injunction application supported by her affidavit filed 14 December 2020;(2)The husband’s application in a case filed 16 November 2020;(3)The wife’s application in the form of her response to an application in a case filed 10 December 2020;(4)The husband’s application to discharge the maintenance provision made, by consent, at the case assessment conference in January 2020.EVIDENCE Both the husband and the wife have prepared extensive affidavit material for today in accordance with the joint practice direction to JPD2 of 2020. That Practice Direction enables them to file the text of evidence upon which they will rely on the basis that they will swear up to the truth of the text at the earliest opportunity. Both have sworn up to the various affidavits to which I have been taken today. On behalf of the wife, that is the affidavit of 7 October 2020, 10 December, the affidavit of 11 December 2020. On the husband’s part, that is his affidavit sealed on 16 November 2020 (folio 94) and his affidavit of 13 December 2020. Additionally, each has a case outline document both filed on 14 December 2020. I have read the evidence. No one sought to cross examine. The parties agreed that they would proceed by way of submissions only. The parenting aspects of this proceeding are covered by the less adversarial trial provisions in Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). I required evidence from the wife’s treating oncologist which was duly taken by electronic means. The rules of evidence apply to any determination of financial issues. In due course, the parties should consider whether application should be made under s 67ZT of the Act or, conversely, whether they consent to the provisions of Division 12A applying to the financial proceedings.INJUNCTIONS ABOUT THE WIFE’S HEALTH The orders sought by the wife is set out at annexure “R-1” of her affidavit prepared 11 December 2020. There have been various amendments and additions to that application, but, essentially, she seeks that the husband be restrained by himself, his servants or agents from discussing or disseminating to any person information or documents in relation to her health and cancer treatment, save for his own legal representatives. Relevantly, Z does not know that the wife’s condition is no longer in remission and the injunction sought by the wife would preclude the husband from being able to discuss the wife’s health with Z even if she initiated a conversation in that regard. The wife also sought that the husband be prevented from causing subpoenas to issue directed to the production of information concerning the wife’s health or from her treating medical practitioners without first obtaining leave of a judge of this Court to do so. Sensibly, the wife conceded certain exceptions being a provision authorising and directing the wife’s treating oncologist to provide regular reports at specified intervals and upon any sudden deterioration and a provision that the wife inform the husband promptly of her having informed the parties only child, Z (10 years) of the wife’s further adverse diagnosis. The husband opposes each and every order sought by the wife in that respect.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 12589 of 2019
Judgment of:	BENNETT J
Date of judgment:	14 December 2020
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – where parents have litigated extensively in this court and in the state court – where parties face difficult issues but must observe some proportionality – where is recommended that this matter be considered for the appointment of a judicial case manager FAMILY LAW – INJUNCTIVE RELIEF – where wife is diagnosed with a serious cancer condition which is no longer in remission – where wife seeks an injunction to prevent the husband from seeking details of her medical condition and prognosis or discussing her shortened life expectancy with any person – where interim injunction granted subject to conditions including the wife authorising her treating oncologist to provide reports each three months as well as on any deterioration of the wife’s condition FAMILY LAW – PARENTING – where the parties 10 year old daughter has not been informed of downturn in wife’s medical condition and the wife proposes to delay telling the child that she is not in remission until after Christmas where injunction is granted consistent with the wife’s position FAMILY LAW – FINANCIAL – where husband seeks a variation to spousal support orders – where there is insufficient evidence upon which to be satisfied of a change in circumstances – where husband’s financial circumstances are unclear – where husband’s application refused but liberty granted for husband to apply at the final hearing for spousal maintenance paid the wife henceforth be retained by the wife for her own use and benefit. FAMILY LAW – COSTS – where husband seeks costs allegedly thrown away by virtue of the wife seeking an urgent sale of real – where court not satisfied that it is proper to make an order
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	119
Date of hearing:	14 December 2020
Place:	Melbourne
Counsel for the Applicant:	In person
Counsel for the Respondent:	Mr Salamanca
Solicitor for the Respondent:	Taussig Cherrie Fildes

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	14 DECEMBER 2020