Garnier & Garnier - [2021] FedCFamC1F 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Garnier & Garnier [2021] FedCFamC1F 186

File number(s): SYC 8916 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 11 November 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena objection – Review of a decision which upheld the objection – Subpoena sought the production of a will and all previously executed wills – Relevant to proceedings – Objection dismissed.

Cases cited:
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892

ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

White and Tulloch v White (1995) FLC 92-640; [1995] FamCA 127

Division: Division 1 First Instance

Number of paragraphs: 20

Date of hearing: 26 October 2021

Place: Sydney (via video link)

Counsel for the Applicant: Mr Richardson SC

Solicitor for the Applicant: York Law

Solicitor for the First Respondent: Barkus Doolan Family Lawyers

Counsel for the Second Respondent: Mr Klineberg

Solicitor for the Second Respondent: Pearson Emerson Family Lawyers
ORDERS

SYC 8916 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GARNIER

Applicant

AND:
MR GARNIER

First Respondent

MS C GARNIER

Second Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

11 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The objection to the production of the document described in paragraph 2 of the subpoena filed on 11 March 2021 addressed to Ms C Garnier is dismissed.
2.The proceedings are listed for directions on Wednesday, 1 December 2021 at 10 am.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garnier & Garnier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:

This is a review of decision of a registrar made on 19 July 2021, striking out paragraph 2 of a subpoena issued to Ms C Garnier. That part of the subpoena sought the production of Ms C Garnier’s last will and testament and all wills previously executed by her since 1 January 1996.
The subpoena was issued in property settlement proceedings between Ms Garnier (“the wife”) and Mr Garnier (“the husband”). According to the…

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 Garnier & Garnier

Details

AGLC: Garnier & Garnier [2021] FedCFamC1F 186
Case: [2021] FedCFamC1F 186
Decision Date

CaseChat Overview and Summary

Garnier & Garnier involved a review of a decision made by a registrar, who had struck out a part of a subpoena issued to Ms C Garnier. The subpoena sought the production of Ms Garnier's last will and testament and any wills previously executed since 1 January 1996. This was part of property settlement proceedings between Ms Garnier, referred to as the wife, and Mr Garnier, the husband, who were married in 2000 and separated in December 2019. The wife's case suggested a family arrangement where, upon the death of her parents, the husband would receive their shares in B Pty Ltd, giving him control of the company. The husband and Ms Garnier disputed this.

The court was required to determine whether the subpoena to Ms Garnier was justified under the principles established in previous cases. The court examined whether the documents sought were relevant to the proceedings and whether their production was necessary for the proper conduct of the litigation. The court referenced various cases, including National Employers’ Mutual General Association Ltd v Waind and Hill, Hatton v Attorney-General of Commonwealth of Australia & Ors, and Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, to assess the relevance of the documents.

The court found that the documents had apparent relevance to the wife's contentions. The handwritten notation in a Deed of Acknowledgment and Rectification, the will of the husband's father, Mr E Garnier, and a Shareholders Agreement all supported the wife's claim. The court concluded that the disposition of Ms Garnier's shares by will could materially assist in determining the wife's claims, and therefore, the objection to the subpoena was dismissed.

The court ordered that the objection to the production of the document described in paragraph 2 of the subpoena filed on 11 March 2021 addressed to Ms C Garnier be dismissed, and the proceedings were listed for directions on 1 December 2021 at 10 am.

Orders