Jarmon & Tannen

Case [2024] FedCFamC2F 479

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jarmon & Tannen [2024] FedCFamC2F 479

File number(s): MLC 7298 of 2023
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 12 April 2024
Catchwords: FAMILY LAW – interim order – directions hearing – looming final hearing – evidence not filed –  where the respondent seeks leave to extend dates for filing to rely upon further documents for trial – dispute as to relevance of information – sought by disclosure and subpoena – disclosure ordered – leave granted for further subpoenas to be filed – extension of filing dates for final hearing  
Cases cited: Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407
Division: Division 2 Family Law
Number of paragraphs: 12
Date of last submission/s: 12 April 2024
Date of hearing: 12 April 2024
Place: Melbourne
Counsel for the Applicant: Mr Mort
Solicitor for the Applicant: Wightons Lawyers
Counsel for the Respondent: Ms Swart
Solicitor for the Respondent: Forte Family Lawyers

ORDERS

MLC 7298 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS JARMON

Applicant
AND:

MR TANNEN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

12 APRIL 2024

THE COURT ORDERS THAT:

1.All relevant times for service, listing and hearing of the Husband’s Application in a Proceeding filed on 5 April 2024, sealed on 8 April 2024, be abridged.

Filing of documents

2.The Husband be granted leave to file and serve an Amended Statement of Claim by 4pm on 12 April 2024.

3.The Wife be granted leave to file and serve an Amended Defence to the Husband’s Amended Statement of Claim within 10 days of the date of service of the Husband’s Amended Statement of Claim.

4.Pursuant to rule 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the times fixed by Orders 2, 3 and 5 of the Orders made on 23 January 2024 be extended.

5.The Husband (who seeks to have the Financial Agreement set aside) be granted leave to rely upon the following documents at trial:

5.1Further Amended Response to Initiating Application filed and served on 9 April 2024;

5.2Trial Affidavit of Mr Tannen filed and served on 9 April 2024;

5.3Affidavit of Ms B filed and served on 9 April 2024;

5.4Amended Financial Statement filed and served on 11 April 2024;

5.5Affidavit of Mr C filed and served on 11 April 2024; and

5.6Affidavit of Ms D filed and served on 11 April 2024.

6.The Wife file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 4.00pm on 22 April 2024.

7.By 4.00pm on 24 April 2024 each party file and serve an outline of case document with respect to the issues for determination including the following:

7.1A list of the documents to be relied upon;

7.2The main issues…

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AGLC
Jarmon & Tannen [2024] FedCFamC2F 479
Case
[2024] FedCFamC2F 479
Decision Date

CaseChat Overview and Summary

In the matter of Ms Jarmon and Mr Tannen, the respondent sought an extension of time to file further documents in relation to an ongoing family law dispute. The Federal Circuit and Family Court of Australia considered the application, which involved questions about the relevance of the additional evidence and whether it should have been sought through disclosure or subpoena. The court found that the respondent had legitimate reasons for not previously disclosing the information and that some of it was not appropriately covered by the existing disclosure obligations. Consequently, the court granted leave for the respondent to file additional documents and to issue further subpoenas, and extended the timelines for filing and serving documents in relation to the final hearing.

The primary legal issues before the court were whether the respondent should be permitted to file additional documents beyond the original deadline and, if so, under what conditions. The court had to consider whether the additional evidence was relevant and necessary for the trial and whether it could have been obtained through the existing discovery process. The court also needed to determine whether the respondent had acted reasonably in not disclosing the information earlier and whether the additional documents should be admitted into evidence. Finally, the court needed to decide on appropriate timelines for the filing and serving of documents in light of the granted extensions.

In rendering its decision, the court acknowledged the respondent's explanation for not disclosing the information earlier and found that some of the requested documents were indeed relevant to the trial and should not have been covered by the existing disclosure obligations. The court noted that the respondent had acted reasonably in seeking to adduce the evidence at the trial stage. The court therefore granted the respondent leave to file additional documents and issue further subpoenas, while imposing strict deadlines for the filing and serving of these documents. The court also extended the overall timelines for the filing and serving of documents in relation to the final hearing, but prohibited the parties from filing any further documents without leave. The court reserved costs for later determination.

The court ordered that all relevant times for service, listing, and hearing of the Husband's Application in a Proceeding be abridged. The Husband was granted leave to file and serve an Amended Statement of Claim by 4pm on 12 April 2024, and the Wife was granted leave to file and serve an Amended Defence within 10 days of the date of service of the Husband's Amended Statement of Claim. The court extended certain deadlines set out in a previous order, and granted the Husband leave to rely upon specified documents at trial. The Wife was required to file and serve one trial affidavit and one affidavit of each witness they intended to rely upon at trial by 4.00pm on 22 April 2024. Both parties were required to file and serve an outline of case document by 4.00pm on 24 April 2024. The parties were restrained from filing any further documents without leave of the Court. The Husband was granted leave to request the issue of a subpoena and to serve a subpoena on E Pty Ltd. The Wife was ordered to provide certain documents by way of further disclosure by 5.00pm on 17 April 2024. The costs of both parties were reserved.

Orders

Orders of the court

MLC 7298 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS JARMON

Applicant

AND:

MR TANNEN

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

12 APRIL 2024

THE COURT ORDERS THAT:

1. All relevant times for service, listing and hearing of the Husband’s Application in a Proceeding filed on 5 April 2024, sealed on 8 April 2024, be abridged.

Filing of documents

2. The Husband be granted leave to file and serve an Amended Statement of Claim by 4pm on 12 April 2024.

3. The Wife be granted leave to file and serve an Amended Defence to the Husband’s Amended Statement of Claim within 10 days of the date of service of the Husband’s Amended Statement of Claim.

4. Pursuant to rule 15.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the times fixed by Orders 2, 3 and 5 of the Orders made on 23 January 2024 be extended.

5. The Husband (who seeks to have the Financial Agreement set aside) be granted leave to rely upon the following documents at trial:

5.1 Further Amended Response to Initiating Application filed and served on 9 April 2024;

5.2 Trial Affidavit of Mr Tannen filed and served on 9 April 2024;

5.3 Affidavit of Ms B filed and served on 9 April 2024;

5.4 Amended Financial Statement filed and served on 11 April 2024;

5.5 Affidavit of Mr C filed and served on 11 April 2024; and

5.6 Affidavit of Ms D filed and served on 11 April 2024.

6. The Wife file and serve one trial affidavit and one affidavit of each witness including expert witnesses they intend to rely upon at trial, such affidavits to comply with rule 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 by 4.00pm on 22 April 2024.

7. By 4.00pm on 24 April 2024 each party file and serve an outline of case document with respect to the issues for determination including the following:

7.1 A list of the documents to be relied upon;

7.2 The main issues in dispute;

7.3 A list of authorities relied upon; and

7.4 A statement of the precise orders sought.

8. The parties be restrained from filing any further documents in this matter without leave of this Honourable Court.

Subpoenas

9. Pursuant to rule 6.27(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Husband be granted leave to request the issue of a subpoena to Ms H of J Lawyers to give evidence at the final hearing.

10. Pursuant to rule 6.29(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Husband be granted leave to serve a subpoena on E Pty Ltd at least 5 business days before production of documents under the subpoena is required.

Disclosure

11. On or before 5.00pm Wednesday, 17 April 2024, the Wife provide to the Husband copies of the following documents by way of her further disclosure:

11.1 Documents evidencing any and all drawings the Wife received from any entity including her F Company business for the period 1 January 2022 to date;

11.2 Documents evidencing any loan, finance arrangement and/or lease entered into by the Wife and/or any entities associated with the Wife including the F Company business for the period 1 January 2022 to date;

11.3 Documents evidencing all monies paid to the Wife including from the business F Company and associated entities including details of any credits standing to the benefit of the Wife for the period of 1 January 2022 to the current date;

11.4 Income Activity Statements issued since 1 July 2022;

11.5 Banking records including bank statements, mortgage statements, credit card statements, deposit/withdrawal records since 1 January 2022 to date for all accounts to which the Wife has, or had access to;

11.6 All payslips received by the Wife’s company and/or the Wife from 1 January 2022 to date;

11.7 Income tax returns and Notices of Assessment for financial years ending 30 June 2020, 30 June 2021, June 2022 and 30 June 2023;

11.8 Phone bills for the phone number … (being the Wife’s phone number) for the period 1 January 2022 to 1 July 2022 AND the Wife be at liberty to redact or black out the phone numbers that are not calls to the Husband’s mobile phone number ending in … but provided that the Wife retains an unredacted copy of that phone bill (for reference in the event that it is relevant);

11.9 All documents relevant to the Wife’s work with and/or for E Pty Ltd, either personally or through an entity, including the Wife’s employment or other contract documenting the nature of the relationship.

12 Save as provided in these orders, neither party is to file any further documents without the leave of the Court.

Costs

13 The costs of both parties be reserved.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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