Fowles and Fowles - [2018] FamCA 145

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES

[2018] FamCA 145

FAMILY LAW – PRACTICE AND PROCEDURE – Relieve parties from obligation of confidentiality over documents in these pending parenting and financial proceedings – discovery – case management.

APPLICANT:

Ms Fowles

RESPONDENT:

Mr Fowles

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

Ms Mary Lonergan

FILE NUMBER:

MLC

8587

2015

DATE DELIVERED:

8 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

8 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gillard

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Lonergan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1.There be leave to each of the parties to refer to affidavits sworn or affirmed by the husband and the wife in these proceedings, or by either of them, in proceedings in Case Numbers …and … in the State Magistrates Court at Melbourne for intervention orders which are next returnable before Magistrate … on … 2018.
2.The parties be at liberty to produce to the said Magistrate a copy of the family report of Dr B dated 12 December 2016 and/or a copy of the family report of Family Consultant Ms C dated 24 November 2017 NOTING THAT neither report has been the subject of cross-examination and each party has this day been provided with a copy of the reports from this Court’s file sequentially numbered pages 1 to 70.
3.By not later than Thursday 15 March 2018 at 12.00 noon the husband provide particulars in writing to the wife, via their respective solicitors, of the common interest privilege claimed in relation to documents in the proceedings between Mr G Fowles and the wife.
4.By not later than 4.00 pm on Wednesday 14 March 2018 each party provide the other parties with any objections in writing to evidence and by not later than 4.00 pm on Thursday 15 March 2018 a party whose evidence has been subject to an objection by the other party provide a response to that objection in writing.
5.By not later than 12.00 noon on 15 March 2018 the husband and the wife each file and serve and provide to my Associate by e-mail – … :- an outline of case in relation to property matters which includes:-
a)      a list of documents upon which that party will rely at trial;
b)      a list which identifies the property, including equitable interests in property, of each of the husband and the wife;
c)      any monies or premature distributions of property to which either party has been entitled, including that property or money which is no longer in existence, and the basis (if any) upon which such property is to be adjusted against the entitlement of either party and the extent of that adjustment;
d)      whether it is just and equitable within the meaning of s79(2) to make an order…

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: [2018] FamCA 145
Decision Date: 8 March 2018

CaseChat Overview and Summary

This matter came before Bennett J concerning proceedings between a husband and wife. The dispute involved applications for intervention orders in the State Magistrates Court at Melbourne, as well as property and parenting matters before the Family Court.

The court was required to determine several issues, including whether to grant leave for parties to refer to affidavits from intervention order proceedings in the Magistrates Court, and whether to permit the production of two family reports, noting that neither had been subject to cross-examination. Further, the court needed to address the husband's claim of common interest privilege over certain documents, the exchange of objections to evidence and responses thereto, and the filing of detailed outlines of case for both property and parenting matters. The court also considered the role and submissions of an independent children's lawyer and the notification of costs to clients.

Bennett J made a series of orders directing the parties to file and serve various documents and particulars by specific dates, including case outlines, lists of documents, and summaries of arguments relating to property and parenting issues. These orders were designed to prepare the matter for a final hearing scheduled to commence on 19 March 2018. The court also ordered that the costs of the day be reserved and dismissed the wife's Application in a Case and the husband's Response thereto. The reasons for the decision were to be transcribed and placed on the court file.

Orders

Orders of the court

IT IS ORDERED THAT:

1. There be leave to each of the parties to refer to affidavits sworn or affirmed by the husband and the wife in these proceedings, or by either of them, in proceedings in Case Numbers …and … in the State Magistrates Court at Melbourne for intervention orders which are next returnable before Magistrate … on … 2018.

2. The parties be at liberty to produce to the said Magistrate a copy of the family report of Dr B dated 12 December 2016 and/or a copy of the family report of Family Consultant Ms C dated 24 November 2017 NOTING THAT neither report has been the subject of cross-examination and each party has this day been provided with a copy of the reports from this Court’s file sequentially numbered pages 1 to 70.

3. By not later than Thursday 15 March 2018 at 12.00 noon the husband provide particulars in writing to the wife, via their respective solicitors, of the common interest privilege claimed in relation to documents in the proceedings between Mr G Fowles and the wife.

4. By not later than 4.00 pm on Wednesday 14 March 2018 each party provide the other parties with any objections in writing to evidence and by not later than 4.00 pm on Thursday 15 March 2018 a party whose evidence has been subject to an objection by the other party provide a response to that objection in writing.

5. By not later than 12.00 noon on 15 March 2018 the husband and the wife each file and serve and provide to my Associate by e-mail – … :- an outline of case in relation to property matters which includes:-

a) a list of documents upon which that party will rely at trial;

b) a list which identifies the property, including equitable interests in property, of each of the husband and the wife;

c) any monies or premature distributions of property to which either party has been entitled, including that property or money which is no longer in existence, and the basis (if any) upon which such property is to be adjusted against the entitlement of either party and the extent of that adjustment;

d) whether it is just and equitable within the meaning of s79(2) to make an order adjusting the husband and/or the wife’s interests in property; and

e) a summary of argument including but not limited to the following matters relating to a final alteration of property interests:-

1. the contribution based entitlement of each party;

2. in dot point form the different types of contribution being financial contributions (s79(4)(a)), non-financial contributions (s79(4)(b)) and contributions to the welfare of the family (s79(4)(c)) upon which that party relies to support the contribution based entitlement for which they contend;

3. any other matters relevant to a division of property including any adjustment to the contribution-based claim (if any) having regard to the factors in s79(4)(d), (e), (f) and (g);

ii. in dot point form what relevant s75(2) or other factors relied upon by that party for any adjustment;

iii. why the orders sought by that party are appropriate;

f) a summary of any matters upon which evidence is adduced from experts and is not agreed, including but not limited to:-

i. the date and outcome of the last conference between experts;

ii. the particular matters upon which there is no agreement between experts;

iii. what the difference there would be to the final outcome in the event that one expert’s view of any particular matter is accepted over the other experts view;

g) a summary of argument in relation to any other financial relief which is sought including child support or spousal maintenance;

h) a minute of the orders which he/she seeks be made at the final hearing if the orders sought differ in any respect from his/her last filed application or response.

6. By not later than 12.00 noon on 15 March 2018 each party file and serve in relation to the parenting proceedings:-

a) a case outline document; and

b) a list of documents to relied upon by that party –

and send same to my Associate by email – … - including, but not necessarily limited to, the following issues:-

a) Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and

b) Whether it is the best interests of the child D born … 2003 (“the child”) to spend equal time with each parent and, if not, why not; and

c) Whether it is the best interests of the child for the parent with whom the child is not primarily resident to be entitled to spend substantial or significant time to spend equal time with the child and, if not, why not; and

d) What parenting orders are sought by that party;

e) Why the parenting orders sought by that party are in the best interests of the child having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.

7. By not later than 16 March 2018 the independent children’s lawyer provide to each other party to the proceedings and by email to my Associate:-

a) a chronology of relevant events;

b) a minute of the orders which in the preliminary view of the independent children’s lawyer ought to be made at the final hearing;

c) a list of documents upon which the independent children’s lawyer intends to rely;

and the parents, through their legal practitioners, cooperate with the independent children’s lawyer to ensure, to the extent that it is practicable to do so, that the information contained in the chronology is agreed to be accurate.

8. By not later than 4.00 pm on 16 March 2018 by way of compliance with Rule 19.04 of the Family Law Rules 2004 the practitioner for each party provide notice in writing to his/her client of:-

a) the actual costs incurred by the client up to and including that date;

b) any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

c) the costs payable for each day of the private mediation;

d) the costs payable for each day of the trial;

e) the estimated length of the trial; and

f) the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i. if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii. if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iii if costs have been paid in cash, the details must identify the payer;

And the parties exchange the cost notifications and send same to my Associate by email.

9. The costs of this day be and are hereby reserved NOTING THAT the independent children’s lawyer attended at Court this day.

10. Otherwise the Application in a Case of the wife filed 27 February 2018 and the Response thereto of the husband filed 7 March 2018 be and is hereby dismissed.

IT IS DIRECTED:

11. That Exhibit “H1” remain on the Court file.

12. My reasons for decision this day be transcribed and when settled be placed on the Court file and provided to the parties to the proceedings and a copy be sent to the said Magistrate.

AND IT IS FURTHER NOTED:

A. That this matter is currently set down for final hearing before me on 19 March 2018 at 10.00 a.m. estimated to take 5 days.

B. That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

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

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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