Dillon & Dillon - [2012] FamCA 319

FAMILY COURT OF AUSTRALIA

DILLON & DILLON

[2012] FamCA 319

FAMILY LAW – PRACTICE AND PROCEDURE - Subpoena and objection on grounds of relevance - Husband pursues wife’s interests in family trusts - Wife’s right limited to the due administration of the trust - Apparent relevance shown in relation to documents in possession of trustee that may be able to assist valuer assess wife’s entitlements.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Hatton and Attorney-General of the Commonwealth of Australia and Ors [2000] FamCA 892
Kennon v Spry (2008) FLC 93-388
Leader and Martin-Leader [2009] FamCA 979
Portal Software v Bodsworth [2005] NSW Supreme Court 1115
Read and Chang and Anor (2010) FLC 93-450; [2010] FamCA 876
Seven Network Limited v News Limited (No 11) [2006] FCA 174
Simmons and Anor v Simmons [2008] FamCA 1088
Spencer Motors Pty Ltd v LNC Industries [1982] 2 NSWLR 921
White and Tulloch v White (1995) FLC 92-640

APPLICANT:

Mr Dillon

RESPONDENT:

Ms Dillon

THIRD PARTY:

Arnold Bloch Leibler

FILE NUMBER:

MLC

9167

2010

DATE DELIVERED:

24 April 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick SC with Mr Strum

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

No Appearance

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE THIRD PARTY:

Mr St John SC

SOLICITOR FOR THE THIRD PARTY:

Arnold Bloch Leibler

Orders

That as soon as practicable, and to the extent not already provided, the subpoenaed parties provide to the solicitors for the husband
(a)any memoranda of wishes and/or memoranda of preferences and/or letters of wishes or like documents of the trust (that is the family discretionary trusts);
(b)minutes of trustee meetings and resolutions of trustees relating to past distributions, planning for future distributions and the conduct of the trusts (past, present or future) taking into account any memoranda or letters of wishes or preferences; and
(c)copies of correspondence between the trustees or directors of the trustees (acting in such capacity) and the wife.
That the objection of the respondents is dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 7 May 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 14 May 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9167 of 2010

Mr…

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 Dillon & Dillon

Details

AGLC: Dillon & Dillon [2012] FamCA 319
Case: [2012] FamCA 319
Decision Date: 24 April 2012

CaseChat Overview and Summary

In the matter of *Dillon & Dillon*, Cronin J of the Family Court of Australia considered an application by the husband for the production of documents held by the trustees of certain family discretionary trusts. The wife, as a beneficiary of these trusts, objected to the production of these documents. The dispute centred on whether the husband was entitled to access trust documents that might be relevant to financial proceedings between the husband and wife.

The primary legal issue before the court was whether the subpoenaed parties, the trustees of the family discretionary trusts, were required to produce documents relating to the trusts, notwithstanding the wife's objection. This involved determining the extent to which trust documents, particularly those concerning beneficiaries' wishes and trustee deliberations, are discoverable in family law proceedings where a beneficiary is a party.

Cronin J reasoned that the wife's objection to the production of the documents was without merit. The court applied the principle that in family law proceedings, parties are generally entitled to discover documents relevant to the proceedings, even if those documents are held by third parties or relate to trusts in which a party is a beneficiary. The court found that the documents sought, including memoranda of wishes, minutes of trustee meetings, and correspondence, were relevant to the financial proceedings and that the wife's interest as a beneficiary did not create an absolute privilege against their disclosure. Consequently, the court dismissed the objection of the respondents.

The court ordered that the subpoenaed parties provide the specified trust documents to the solicitors for the husband as soon as practicable. The court also ordered that any applications for costs arising from these orders be made by written submission by a specified date, with responses to be filed shortly thereafter, and that such applications be determined in chambers.

Orders

Orders of the court

That as soon as practicable, and to the extent not already provided, the subpoenaed parties provide to the solicitors for the husband

(a) any memoranda of wishes and/or memoranda of preferences and/or letters of wishes or like documents of the trust (that is the family discretionary trusts);

(b) minutes of trustee meetings and resolutions of trustees relating to past distributions, planning for future distributions and the conduct of the trusts (past, present or future) taking into account any memoranda or letters of wishes or preferences; and

That the objection of the respondents is dismissed.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 7 May 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 14 May 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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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