Galante and Galante - [2019] FamCA 901

FAMILY COURT OF AUSTRALIA

GALANTE & GALANTE

[2019] FamCA 901

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks further discovery of documents – Where the husband opposes discovery on the basis that the documents have either already been discovered or that the documents sought are an abuse of process, fishing or oppressive – Orders.

Family Law Rules 2004 (Cth) rr 13.01, 13.04, 13.07

Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063
Hatton & Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Martin & Martin and Anor(No 2) [2014] FamCA 232
Re Ronald Neville McGorm Ex Parte: the Co-operative Building Society of South Australia [1989] FCA 87
Schweitzer & Schweitzer [2012] FamCA 455
Woley & Humboldt (No 3) [2009] FamCA 546

APPLICANT:

Ms Galante

RESPONDENT:

Mr Galante

FILE NUMBER:

ADC

3454

2017

DATE DELIVERED:

29 November 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

23 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maik

SOLICITOR FOR THE APPLICANT:

Camena Legal

COUNSEL FOR THE RESPONDENT:

Mr Livesey QC with Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler Family Lawyers

Orders

That within seven (7) days of the date of this order the husband shall produce the following documents:-
(a)All bank statements in the name of B Galante Family Trust (“BGFT”) in respect of the following transactions:-
(i)Capital contributions totalling $238,896 for the years ended 30 June 2018 and 30 June 2019;
(ii)Capital contributions for the year ended 30 June 2010;
(iii)Investments by BGFT for years ended 30 June 2018 and 30 June 2019 in respect of N Pty Ltd;
(iv)Loans from BGFT to the husband and/or Ms Dains being money deposited into a Westpac joint home loan account;
(v)The withdrawal of $100,000 in September 2012 from a CBA term deposit account;
(vi)Loans in the amount of $86,897 from BGFT to the husband for the purpose of paying the husband’s taxation liabilities.
(b)Any documents that relate to any money provided by the husband to his parents in respect of any capital contribution or loan made to BGFT by either Mr B Galante or Mr D Galante.
(c)Bank statements for the BGFT CBA term deposit in September 2012;
(d)Loan account ledgers for the following beneficiaries:-
(i)Mr B Galante and Mr D Galante from 1 June 2006 to 30 June 2019;
(ii)Mr C Galante from 1 July 2015 to 30 June 2019;
(iii)Ms E Galante and Mr H Galante from 1 July 2006 to 30 June 2019;
(iv)The wife for the period from the settlement of BGFT to 30 June 2019 ;
PROVIDED THAT the husband will cause the provision of the reconstructed loan accounts upon the payment by the wife of the reasonable costs of compliance fixed in the sum of THREE HUNDRED DOLLARS ($300) plus GST for each year that records are required to be reconstructed;
(e)Documents (if available) which identify the financial institution, account name…

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 Galante and Galante

Details

AGLC: Galante and Galante [2019] FamCA 901
Case: [2019] FamCA 901
Decision Date: 29 November 2019

CaseChat Overview and Summary

In the matter of *Galante and Galante*, Berman J of the Federal Circuit and Family Court of Australia was required to determine an application for the production of documents in family law proceedings. The dispute concerned the financial affairs of the parties and the B Galante Family Trust (BGFT), with one party seeking disclosure of various financial records.

The primary legal issue before the court was the extent of disclosure required from the husband concerning the BGFT and related financial transactions. Specifically, the court had to consider whether to order the production of bank statements, loan account ledgers, and other documents pertaining to capital contributions, investments, loans, and distributions from the trust, as well as funds provided to the husband's parents.

Berman J ordered the husband to produce a comprehensive list of documents within seven days. This included bank statements for the BGFT detailing specific capital contributions, investments in N Pty Ltd, loans to the husband and Ms Dains, a withdrawal from a term deposit, and loans for taxation liabilities. The order also mandated the production of documents relating to money provided by the husband to his parents for capital contributions or loans to the BGFT, and bank statements for a specific CBA term deposit. Furthermore, loan account ledgers for various beneficiaries, including the husband, his parents, other named individuals, and the wife, were ordered to be produced, subject to the wife paying the reasonable costs of reconstruction for certain periods. The husband was also required to provide documents identifying the financial institutions and account numbers into which beneficiary distributions were made, provided such documents were available and subject to reasonable compliance costs.

Orders

Orders of the court

That within seven (7) days of the date of this order the husband shall produce the following documents:-

(a) All bank statements in the name of B Galante Family Trust (“BGFT”) in respect of the following transactions:-

(i) Capital contributions totalling $238,896 for the years ended 30 June 2018 and 30 June 2019;

(ii) Capital contributions for the year ended 30 June 2010;

(iii) Investments by BGFT for years ended 30 June 2018 and 30 June 2019 in respect of N Pty Ltd;

(iv) Loans from BGFT to the husband and/or Ms Dains being money deposited into a Westpac joint home loan account;

(v) The withdrawal of $100,000 in September 2012 from a CBA term deposit account;

(vi) Loans in the amount of $86,897 from BGFT to the husband for the purpose of paying the husband’s taxation liabilities.

(b) Any documents that relate to any money provided by the husband to his parents in respect of any capital contribution or loan made to BGFT by either Mr B Galante or Mr D Galante.

(d) Loan account ledgers for the following beneficiaries:-

(i) Mr B Galante and Mr D Galante from 1 June 2006 to 30 June 2019;

(ii) Mr C Galante from 1 July 2015 to 30 June 2019;

(iii) Ms E Galante and Mr H Galante from 1 July 2006 to 30 June 2019;

(iv) The wife for the period from the settlement of BGFT to 30 June 2019 ;

PROVIDED THAT the husband will cause the provision of the reconstructed loan accounts upon the payment by the wife of the reasonable costs of compliance fixed in the sum of THREE HUNDRED DOLLARS ($300) plus GST for each year that records are required to be reconstructed;

(e) Documents (if available) which identify the financial institution, account name and account numbers into which beneficiary distributions have been made for the period 1 July 2006 to 30 June 2019 PROVIDED that the husband shall not be required to cause documents to be created or reconstructed and that the provision of documents shall be subject to reasonable costs of compliance.

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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