Catchwords: FAMILY LAW – Practice & Procedure – application to set aside Orders pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 – where the substantive proceedings relate to competing applications for property adjustment – where the respondent will incur a perceived if not real injustice if the proceedings are not reopened – application for change of venue – consideration of rule 8.01 of the Federal Circuit Court Rules 2001 – orders set aside.
[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
AGLC
Harper & Harper [2016] FCCA 1603
Case
[2016] FCCA 1603
Decision Date
CaseChat Overview and Summary
In the matter of *Harper & Harper*, Judge Harman of the Federal Circuit Court of Australia considered an application to set aside previous orders and an application for a change of venue. The dispute concerned financial matters within a family law proceeding.
The court was required to determine whether to set aside the orders made on 21 March 2016 and whether to grant the application for a change of venue. Additionally, the court needed to make directions regarding the valuation of a property, the disclosure of documents, and the future conduct of the proceedings.
Judge Harman set aside the previous orders pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 and dismissed the application for a change of venue. The court then issued detailed directions for the parties to obtain valuation evidence for a specific property, requiring valuers to confer and produce a joint report if they could not agree on a value. Further orders mandated the wife to identify any documents she alleged had not been provided by the husband, and both parties were ordered to provide extensive financial documentation, including tax returns, superannuation details, bank and credit card statements, market appraisals, and any documents relevant to allegations made in affidavits or financial statements. The court also stipulated that any undisclosed documents would not be admitted into evidence. The matter was adjourned for further mention and directions.
Orders
Orders of the court
1.
The Orders made 21 March 2016 shall be set aside pursuant to rule 16.05 of the Federal Circuit Court Rules 2001.
2.
Dismiss the Application for change of venue.
3.
Each of the parties shall, within 28 days obtain, file and serve valuation evidence in admissible form as to the value of the property, Property P in the State of New South Wales, being all that parcel and certificate of title folio identifier (omitted).
4.
In the event that the valuers retained by each party do not agree as to the value of the Property P property, then each of the parties shall forthwith do all things, sign all documents, do all things necessary and pay all fees necessary to cause those valuers to consult with each other, confer and produce a joint report setting out any agreed value arrived at following such consultation and, in the absence of agreement, setting out clearly the areas of controversy between them which have led them to offer different opinion as to the value of the property.
5.
Each party shall do all acts and things, sign all documents and give all consents and authorities necessary to allow, permit and facilitate all necessary access to any valuer instructed by either party for the purpose of completing and providing valuation evidence or any conferral between the experts.
6.
The wife shall, within 21 days, advise the husband in writing of all documents or classes of documents which she alleges have not been provided by the husband, and which are required by her to enable her to fully understand, address, examine and if necessary make further inquiry with respect to any allegation of fact made by the husband as raised in his affidavit or as may be suggested to be relevant to the proceedings and their determination.
7.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules and within 35 days the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a) Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b) An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;
(c) Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;
(d) Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;
(e) Market appraisals with respect to any parcel of real estate in which any party has an interest;
(f) Any document within the possession, custody or control of that party proving disproving or tending to prove or disprove any allegation contained in either party’s Financial Statement or Affidavit or which will be raised as an allegation of fact at hearing;
(g) Copies of market appraisals or computer site print outs as to value of:
(i) Any motor vehicle the value of which is not agreed.
8.
Any document which is, at the date of this order, in the possession, custody or control of a party and which is not disclosed and a copy provided to the other party in accordance with the above order will not be admitted into evidence.
9.
Vacate the mention 10 August 2016.
10.
The matter is adjourned for further mention and directions to 12 October 2016 at 2:15pm.