HRBH & IABH - [2009] FamCA 1131

FAMILY COURT OF AUSTRALIA

IABH & HRBH

[2009] FamCA 1131

FAMILY LAW – PROPERTY – Interim hearing – permission to tender affidavit of and report of adversarial expert

Family Law Act 1975 (Cth)
Family Law Rules 1.12; 15.49(2)(b) and (c); 15.54(1) and (2); 15.65; 15.66

APPLICANT:

Mr HRBH

RESPONDENT:

Ms IABH

FILE NUMBER:

TVF

2003

DATE DELIVERED:

20 November 2009

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

17 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk, SC

SOLICITOR FOR THE APPLICANT:

Miller Harris Lawyers

COUNSEL FOR THE APPLICANT:

Mr North, SC

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie & Associates

Orders

Orders made 17 November 2009

The wife’s application that Dr RW and Dr JC confer prior to the first day of the hearing is dismissed.
The lawyers for the parties confer for the purpose of attempting to make an arrangement for Dr RW and Dr JC to concurrently give their evidence by electronic (telephone) means.
The husband’s application that Mr DH and Ms MD confer prior to the hearing is dismissed.
The lawyers for the parties confer for the purposes of attempting to make an arrangement for Mr DH and Ms MD to concurrently give their evidence by electronic (telephone) means.
Permission is granted to the husband to tender the affidavit of Mr SQ sworn and filed 2 November 2009.
By consent, the wife (through her lawyers) may have oral or written privileged communication with Mr DD.
Not earlier than Friday 20 November 2009, Mr DD and Mr SQ conduct a conference pursuant to rule 15.69(3) Family Law Rules and each of them do all things required by that rule.
The applications in the case filed by the husband on 10 November 2009 and the applications in the response filed by the wife on 16 November 2009 are otherwise dismissed.

IT IS NOTED THAT:

It is anticipated by counsel for the parties that there will be agreement in relation to the accommodation of expert witnesses by interposing them at times convenient to them during the hearing.
I have reserved giving my reasons for making order 5.

IT IS NOTED that publication of this judgment under the pseudonym IABH & HRBH is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVF 6/2003

Mr HRBH

Applicant

And

Ms IABH

Respondent

REASONS FOR JUDGMENT

The husband, by way of Application in a Case filed on 10 November 2009, sought orders that Dr RW and Dr JC confer and that Mr DH and Ms MD confer. After discussion, I dismissed these applications and senior counsel for the husband indicated that no formal reasons were required.
The husband also sought permission to tender an affidavit by Mr SQ which was sworn 2 November 2009 and filed 2 November 2009. Mr SQ is a real estate valuer. He was employed as a “shadow expert” by the husband, who now wishes to rely upon him as an…

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 HRBH & IABH

Details

AGLC: HRBH & IABH [2009] FamCA 1131
Case: [2009] FamCA 1131
Decision Date: 20 November 2009

CaseChat Overview and Summary

In the matter of HRBH & IABH, heard by Watts J, the wife sought an order that two medical practitioners, Dr RW and Dr JC, confer prior to the first day of the hearing. The husband sought a similar order for two other individuals, Mr DH and Ms MD, to confer. The court also considered applications concerning the tendering of an affidavit and privileged communication with a Mr DD, as well as a conference to be conducted by Mr DD and Mr SQ.

The primary legal issues before the court concerned the procedural arrangements for the giving of evidence and the conduct of conferences between parties and their representatives. Specifically, the court had to determine whether to grant the applications for the medical practitioners and the other individuals to confer, and how to manage the tendering of evidence and communications in light of the impending hearing.

Watts J dismissed the wife's application for Dr RW and Dr JC to confer, and the husband's application for Mr DH and Ms MD to confer. However, the court ordered that the lawyers for both parties confer to explore arrangements for Dr RW, Dr JC, Mr DH, and Ms MD to give evidence concurrently by telephone. Permission was granted for the husband to tender the affidavit of Mr SQ. The court also made orders regarding privileged communication between the wife and Mr DD, and directed Mr DD and Mr SQ to conduct a conference pursuant to rule 15.69(3) of the Family Law Rules. All other applications filed by the husband and wife were dismissed.

Orders

Orders of the court

Orders made 17 November 2009

The wife’s application that Dr RW and Dr JC confer prior to the first day of the hearing is dismissed.

The lawyers for the parties confer for the purpose of attempting to make an arrangement for Dr RW and Dr JC to concurrently give their evidence by electronic (telephone) means.

The husband’s application that Mr DH and Ms MD confer prior to the hearing is dismissed.

The lawyers for the parties confer for the purposes of attempting to make an arrangement for Mr DH and Ms MD to concurrently give their evidence by electronic (telephone) means.

Permission is granted to the husband to tender the affidavit of Mr SQ sworn and filed 2 November 2009.

By consent, the wife (through her lawyers) may have oral or written privileged communication with Mr DD.

Not earlier than Friday 20 November 2009, Mr DD and Mr SQ conduct a conference pursuant to rule 15.69(3) Family Law Rules and each of them do all things required by that rule.

The applications in the case filed by the husband on 10 November 2009 and the applications in the response filed by the wife on 16 November 2009 are otherwise dismissed.

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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