Jinson and Fletcher (No 2) - [2015] FamCA 1153

FAMILY COURT OF AUSTRALIA

JINSON & FLETCHER (NO 2)

[2015] FamCA 1153

FAMILY LAW – Adjournment of trial where discovery still being pursued. Importance of explaining delay and exposing relevance of documents pursued in discovery.

Costs.

Family Law Act 1975 (Cth)

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

Briese and Briese (1986) FLC 91-713
K & K [2008] FamCA 957
Strachan & Strachan (Interim Financial Disclosure Orders) [2010] FamCA 423
Woley and Humboldt (no 3) [2009] FamCA 546

APPLICANT:

Ms Jinson

RESPONDENT:

Mr Fletcher

FILE NUMBER:

MLC

3123

2014

DATE DELIVERED:

18 December 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

17 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum SC

SOLICITOR FOR THE APPLICANT:

O'Hanlon Foster Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Percy with Ms Mariole

SOLICITOR FOR THE RESPONDENT:

Goldhirsch & Shnider Lawyers

Orders

That the final hearing listed for 18 January 2016 is vacated.
That all outstanding applications are listed for any interim hearing at 10.00am on 17 February 2016.
That each party have leave to file such applications in a case as they are so advised to be made returnable at 10.00am on 17 February 2016.
That within 21 days of this date, the solicitors for the wife serve upon the solicitors for the husband a list of all documents that they require for inspection and subject to objection, the husband provide those documents for inspection within 10 days thereafter.
To the extent that there is any objection to the disclosure referred to in these orders, that matter be determined on the next return date.
That the application in a case filed 16 December 2015 is dismissed.
That the wife pay the husband’s costs fixed in the sum of $5000.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jinson & Fletcher (No 2) 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 MELBOURNE

FILE NUMBER: MLC 3123 of 2014

Ms Jinson

Applicant

And

Mr Fletcher

Respondent

REASONS FOR JUDGMENT

The issue for determination in this interlocutory application is essentially whether or not a final hearing which is listed to begin in about 4 weeks should be vacated. There are other issues of discovery, joinder of parties and costs to be resolved. For the reasons that follow and with some hesitation, I consider justice requires the wife be given a further (and perhaps final) chance to get her house in order. It follows that the trial should be vacated.
In Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, French CJ considered the Australian Capital Territory civil procedure rules requiring ACT courts to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense and for that purpose, to apply the rules so that inter alia ,there was a timely disposal of the proceedings…

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: [2015] FamCA 1153
Decision Date: 18 December 2015

CaseChat Overview and Summary

In proceedings before Cronin J, the parties, Jinson and Fletcher, were engaged in a family law dispute. The central issue before the court was an application for an adjournment of the final hearing, which was scheduled for 18 January 2016, due to ongoing discovery processes. The court was also required to consider the wife's application filed on 16 December 2015 and the matter of costs.

The court was tasked with determining whether the final hearing should be adjourned to allow for further discovery, and if so, on what terms. It also needed to decide the fate of the wife's application filed in December 2015 and to make orders regarding the costs of the proceedings.

Cronin J reasoned that for an adjournment to be granted in circumstances where discovery was still being pursued, it was important for the party seeking the adjournment to explain any delay and to demonstrate the relevance of the documents being sought. The court ultimately vacated the final hearing and listed outstanding applications for an interim hearing on 17 February 2016. The wife was ordered to serve a list of required documents within 21 days, with the husband to provide them for inspection within 10 days thereafter, subject to any objections to be determined on the return date. The wife's application filed on 16 December 2015 was dismissed, and the wife was ordered to pay the husband's costs fixed at $5000.

Orders

Orders of the court

That the final hearing listed for 18 January 2016 is vacated.

That all outstanding applications are listed for any interim hearing at 10.00am on 17 February 2016.

That each party have leave to file such applications in a case as they are so advised to be made returnable at 10.00am on 17 February 2016.

That within 21 days of this date, the solicitors for the wife serve upon the solicitors for the husband a list of all documents that they require for inspection and subject to objection, the husband provide those documents for inspection within 10 days thereafter.

To the extent that there is any objection to the disclosure referred to in these orders, that matter be determined on the next return date.

That the application in a case filed 16 December 2015 is dismissed.

That the wife pay the husband’s costs fixed in the sum of $5000.

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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