GAYNOR & TSEH - [2018] FamCA 164

FAMILY COURT OF AUSTRALIA

GAYNOR & TSEH

[2018] FamCA 164

FAMILY LAW – INTERLOCUTORY ORDERS – dispute over the extent of discovery – where there is asserted no knowledge of the business dealings of the applicant and the respondent seeks extensive documents in circumstances where the applicant is said to have not told the truth to his bankers and otherwise conducts business by a “handshake”.

FAMILY LAW – PROPERTY – interlocutory order – interim property proceedings – where the parties dispute ownership and possession of a dog – where a pet is property within the meaning of the Family Law Act and the approach to the determination of an interim property dispute is the same – where there is not sufficient evidence to justify the exercise of power – application for interim relief refused.

FAMILY LAW – COSTS – where despite findings of incomplete discovery, a large number of matters were otherwise resolved by consent and where a significant portion of the litigation was around orders associated with the dog. Where the court finds there is no justifiable circumstance to depart from the principle that each party pays their own costs.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Gaynor

RESPONDENT:

Ms Tseh

FILE NUMBER:

MLC

3090

2017

DATE DELIVERED:

20 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Jenkins

SOLICITOR FOR THE APPLICANT:	Taussig Cherrie Fildes
COUNSEL FOR THE RESPONDENT:	Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Blackwood Family Lawyers

Orders

Within 5 days, the applicant MR GAYNOR comply with paragraph 3 of the orders made 16 November 2017 including the payment of any interest accrued on any outstanding sum.
That forthwith, the applicant produce to the respondent details of all storage costs’ arrangements in respect of payment for the period from 16 November 2017 to date.
That within 14 days, the applicant make disclosure of all contracts and memoranda of understanding for the period from 1 July 2015 to date relating to services either as an individual or by an entity in which he has an interest including any partnership or joint venture.
That the respondent’s application that the applicant pay the costs of these proceedings is dismissed.
BY CONSENT that there be orders in terms of the attached minute.
That the solicitors for the respondent engross the minute and provide it in a Word format.
That otherwise, the application in a case filed 1 February 2018 and the response thereto filed 8 March 2018 are dismissed.

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

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

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)…

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 164
Decision Date: 20 March 2018

CaseChat Overview and Summary

In the matter of *Gaynor & Tseh*, heard before Cronin J, the parties were engaged in interlocutory proceedings concerning property and discovery within a family law dispute. The core of the disagreement involved the extent of discovery sought by the respondent, particularly in relation to the applicant's business dealings, which the applicant allegedly conducted informally and had misrepresented to his bankers. A secondary, and notably contentious, issue was the ownership and possession of a dog, which formed the subject of an application for interim property relief.

The court was required to determine several legal issues. Firstly, it had to consider the appropriate scope of discovery in circumstances where the applicant asserted a lack of knowledge regarding his business affairs and conducted business informally. Secondly, the court needed to decide whether to grant interim relief regarding the disputed ownership of the dog, and if so, on what basis. Finally, the court was tasked with determining the appropriate costs orders, given the findings regarding discovery and the resolution of other matters.

Cronin J reasoned that a pet, such as a dog, is considered property within the meaning of the *Family Law Act 1975* (Cth), and the approach to determining an interim property dispute concerning a pet is the same as for other property. However, the court found that there was insufficient evidence presented to justify the exercise of its power to grant interim relief concerning the dog, and therefore this application was refused. Regarding discovery, while acknowledging findings of incomplete disclosure, the court noted that a significant number of matters were resolved by consent, and a substantial portion of the litigation had focused on the dog. Consequently, the court found no justifiable circumstances to depart from the usual principle that each party bears their own costs, dismissing the respondent's application for costs. The court also made orders for further discovery and payment of outstanding sums, and by consent, other orders were made, with the remaining applications dismissed.

Orders

Orders of the court

Within 5 days, the applicant MR GAYNOR comply with paragraph 3 of the orders made 16 November 2017 including the payment of any interest accrued on any outstanding sum.

That forthwith, the applicant produce to the respondent details of all storage costs’ arrangements in respect of payment for the period from 16 November 2017 to date.

That within 14 days, the applicant make disclosure of all contracts and memoranda of understanding for the period from 1 July 2015 to date relating to services either as an individual or by an entity in which he has an interest including any partnership or joint venture.

That the respondent’s application that the applicant pay the costs of these proceedings is dismissed.

BY CONSENT that there be orders in terms of the attached minute.

That the solicitors for the respondent engross the minute and provide it in a Word format.

That otherwise, the application in a case filed 1 February 2018 and the response thereto filed 8 March 2018 are dismissed.

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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