Hand & Bodilly & Anor - [2018] FamCA 1158

FAMILY COURT OF AUSTRALIA

HAND & BODILLY AND ANOR

[2018] FamCA 1158

FAMILY LAW – SPOUSAL MAINTENANCE – interim orders – where there is a longstanding spousal maintenance order on the basis of the wife’s health – where the wife is eligible for the entitlements under the National Disability Insurance Scheme and the respondent payer seeks a dollar for dollar reduction – where adjustment is made pending final hearing.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987)
Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172
Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240
New South Wales v Jackson (2007) NSWCA 279
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310
Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384; (1990) 22 FCR 73
The Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39

APPLICANT:

Mr Hand

RESPONDENT:

Ms Bodilly

INTERVENOR:

Ms K Hand

FILE NUMBER:

MLC

10737

2009

DATE DELIVERED:

15 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2nd February 2018; 9 April 2018; 8 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St John QC

SOLICITOR FOR THE APPLICANT:

Sayer Jones

COUNSEL FOR THE RESPONDENT:

Mr Matta

SOLICITOR FOR THE RESPONDENT:

Pearce Webster Dugdales

COUNSEL FOR THE INTERVENOR:

Mr Kaufman

SOLICITOR FOR THE INTERVENOR:

Lander & Rogers

Orders

That paragraphs 1 and 2 of the orders made on 27 August 2012 are suspended until further order.
Forthwith and commencing with a payment on the 7^th day after these orders, and until further order, the respondent Mr Hand pay to the applicant Ms Bodilly by way of spousal maintenance the sum of $1600 per week.
That all extant applications for final orders relating to either an increase or a decrease/discharge of the respondent’s obligations to pay spousal maintenance to the applicant are fixed for final hearing on Monday 1 October 2018.
That the solicitors for the parties (including the second respondent) forthwith provide to the case coordinator their agreed timetable for the filing of material for the said final hearing and failing agreement, the matter be listed as soon as practicable in the Judicial Duty List for determination.
That all interim applications are otherwise dismissed.
That the objection by the applicant (Ms Bodilly) to the releasing for inspection of the documents contained in the sealed envelope produced pursuant to the subpoena to the applicant’s accountants is upheld and such documents be extracted from the subpoenaed material and returned to the solicitors for the applicant (Ms Bodilly) forthwith.
That all parties have liberty to apply.

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 Bodilly & Hand has been approved…

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 1158
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Mr Hand (the respondent) to vary an existing spousal maintenance order made in favour of Ms Bodilly (the applicant). The proceedings had been ongoing for many years, with the original spousal maintenance order established in 2012 based on the applicant's health. The respondent sought a dollar-for-dollar reduction in his maintenance obligations, arguing that the applicant's eligibility for entitlements under the National Disability Insurance Scheme (NDIS) should offset his payments. The applicant opposed any alteration to the status quo pending a final hearing.

The court was required to determine two primary issues. Firstly, it had to consider the respondent's application for interim relief to reduce spousal maintenance, specifically addressing the impact of the applicant's NDIS entitlements. Secondly, the court needed to resolve objections raised by the applicant regarding the inspection of documents subpoenaed from her financial advisors and accountants, which she claimed were protected by legal professional privilege and litigation privilege.

Regarding the objections to the subpoenaed documents, the court applied the principles of confidentiality as outlined in the *Evidence Act 1995* (Cth) and relevant case law, including *New South Wales v Jackson* and the analysis of Megarry J in *Coco v A N Clark (Engineers) Ltd*. The court found that the documents, prepared for the applicant's legal advisors in contemplation of litigation, possessed the necessary quality of confidence and were imparted in circumstances importing an obligation of confidence. Consequently, the objection was upheld, and the documents were ordered to be returned to the applicant's solicitors.

In relation to the spousal maintenance, the court acknowledged the respondent's submission that his obligation of $3,505 per week should be reduced by the assessed NDIS entitlement of $105,554.25 per annum, resulting in a shortfall of $1,476 per week. However, the court noted that no NDIS funds had yet been received by the applicant. The court ultimately ordered that the existing spousal maintenance order be suspended and replaced with an interim payment of $1,600 per week, pending the final hearing scheduled for October 2018. All other interim applications were dismissed.

Orders