Gillim and Gillim and Ors

[2014] FamCA 211

FAMILY COURT OF AUSTRALIA

GILLIM & GILLIM AND ORS [2014] FamCA 211

FAMILY LAW – EVIDENCE – Documentary evidence

Family Law Act 1975 (Cth) s 106B

APPLICANT: Mr D Gillim

FIRST RESPONDENT: Ms J Gillim

SECOND RESPONDENT: Mr N Gillim

THIRD RESPONDENT: Ms Kemery

FOURTH RESPONDENT: Mr A Gillim

FILE NUMBER: SYC 6124 of 2011

DATE DELIVERED: 25 March 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 25 March 2014

REPRESENTATION

THE APPLICANT IN PERSON: Mr D Gillim

SOLICITOR FOR THE FIRST RESPONDENT: Farrar Gesini Dunn

SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENTS Barkus Doolan

Orders

1. That I stand this matter over, before myself for Call-over, at 2.15pm on Monday 28 April 2014.

2. That I extend the time for the husband to file and serve his affidavit material up until close of business on Thursday 17 April 2014.

3. That the husband shall not file any further affidavit after that date without prior leave of the Court.

4. That I decline to order the production of the prior Will of Ms B or the file in relation to it.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillim & Gillim and Ors 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 SYDNEY

FILE NUMBER: SYC 6124 of 2011

Mr D Gillim

Applicant

And

Ms J Gillim

First Respondent

And

Mr N Gillim

Second Respondent

And

Ms Kemery

Third Respondent

And

Mr A Gillim

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter Mr D Gillim, (“the husband”) has sought production from the second to fourth Respondents of the file relating to the Will of Ms B in relation to the Will made prior to her final Will dated 16 August 2007.  That later Will has been admitted to Probate and the second to fourth respondents are the Executors of that Will. 

2. The husband wishes to obtain the file relating to the last Will made prior to 16 August 2007. The husband is generally familiar with the contents of that Will but does not have a copy. The reason he wishes to have a copy of it and to obtain the documents that led to its creation is so that he can assert that the later Will dated 16 August 2007, which was admitted to Probate, is in fact an instrument or disposition that he would then seek to set aside under s 106B of the Family Law Act 1975 (Cth) (‘the Act’).

3. No such claim has been made in proceedings to date.  Thus, the husband is seeking discovery in relation to an issue that is presently not before the Court.  The general rule is that discovery is permissible to obtain evidence in support of a claim that you have made but not an order to see whether or not you have a claim at all (Commissioner for Railways v Small (1938) 38 SRNSW 564).

4. Whilst that decision applies to courts in which there are pleadings the principle is generally applicable.  There is an obligation on parties to provide disclosure in this Court but that disclosure must be relevant to a fact or matter in issue in the proceedings.

Conclusion

1. Given that the later Will has been admitted to Probate and given that there has been no application by the husband or, by anyone else in relation to the later Will, such as to assert that it was made without capacity or to seek to have an earlier Will admitted to Probate, it is difficult to see how the making of a Will by the wife’s mother, in the absence of any suggestion that she was obliged to deal with her property in her Will in any particular way, would be a disposition by her that was on behalf of or by direction of or in the interests of the wife. It would be necessary for it to be such a disposition to fall within s 106B of the Family Law Act. 

2. I am not satisfied that the prior Will or the file in relation to it is relevant to any fact or matter in issue in these proceedings and I decline to order its production.  

3. Accordingly, I make orders as set out at the commencement of my reasons for Judgment.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 25 March 2014.

Associate: 

Date:  31 March 2014