K & K

Case [2008] FamCA 957 10 November 2008

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FAMILY COURT OF AUSTRALIA

K & K

[2008] FamCA 957

FAMILY LAW – DISCOVERY – Disclosure – possession and control of documents - Issue of subpoena to lawyer of third parties in place of issuing one on each individually in respect of same document - Costs

Family Law Act 1975 (Cth)

Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627
Rowntree v ASC (Federal Court of Australia, Lockhart J, 27 November 1992, unreported)

APPLICANT:

Ms K

RESPONDENT:

Mr K

FILE NUMBER:

MLF

1913

2001

DATE DELIVERED:

10 November 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Spicer

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

Orders

That the husband forthwith disclose and make available for inspection by the wife and her practitioners:
(a)    His personal Income Tax Returns for each of the financial years ended 30 June 2001 to financial year ended 30 June 2008 (inclusive), including accompanying documents such as Group Certificates and Notices of Assessment issued by the Australian Taxation Office;
(b)    A copy of his current Will and a copy of any previous Will and draft Will prepared by him or on his behalf since 1 January 2001;
(c)    A copy of his current passport and a copy of any other passport he has held which has expired since 1 January 2002;
(d)    Bank statements in respect of all any bank accounts, including cheque accounts and credit cards held by the Husband with any financial institution within Australia and outside of Australia for the period 1 January 1999 to date;
Without limiting the obligations imposed upon the Husband in respect of compliance with this Order, the Husband be specifically ordered to produce his bank statements for the period 1 January 1999 to date in respect of his Barclays card no. ….
(e)    Copies of all superannuation statements issued to the Husband in respect of all and any superannuation fund(s) held in his name for the period 1 July 1999 to date;
(f)     Copies of any documents such as financial statements (including trust) and company Income Tax Returns, Balance Sheets, Profit & Loss Statement, Explanatory Notes or other documents, distribution minutes, minutes of directors internal meetings, memoranda and bank statements in his possession power and control regarding the company K Services Ltd (“the company”) for the financial years ended 30 June 2002 to financial year ended 30 June 2008 inclusive;
(g)    Copies of any documents in his possession, power and control regarding his current residential accommodation at O, including copies of any lease, rental receipts, rate notices, utility bills and related documents in relation to the period of the Husband’s occupation of that property.
That the wife forthwith disclose and make available for inspection…

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 K & K

Details

AGLC: K & K [2008] FamCA 957
Case: [2008] FamCA 957
Decision Date: 10 November 2008

CaseChat Overview and Summary

In the matter of K & K, Cronin J ordered the husband and wife to disclose a range of financial and personal documents. The dispute concerned the disclosure of financial information in proceedings between the parties.

The court was required to determine the extent of disclosure necessary from each party, specifically concerning their income tax returns, wills, passports, bank accounts, superannuation, company documents, and residential accommodation details. The wife also sought disclosure of specific diary entries.

Cronin J ordered the husband to disclose his income tax returns from 2001 to 2008, his current and past wills, current and expired passports, bank statements from 1999 to date (including specific Barclays card details), superannuation statements from 1999 to date, financial and tax documents relating to K Services Ltd from 2002 to 2008, and documents concerning his current residential accommodation. The wife was ordered to disclose her income tax returns from 2006 to 2008, superannuation statements from 2005 to date, bank and credit card statements for 2006 to date, and specific diary entries. The court also directed the wife to file submissions regarding reserved costs and granted leave for both parties to issue subpoenas, with costs of the application reserved.

Orders

Orders of the court

That the husband forthwith disclose and make available for inspection by the wife and her practitioners:

(a) His personal Income Tax Returns for each of the financial years ended 30 June 2001 to financial year ended 30 June 2008 (inclusive), including accompanying documents such as Group Certificates and Notices of Assessment issued by the Australian Taxation Office;

(b) A copy of his current Will and a copy of any previous Will and draft Will prepared by him or on his behalf since 1 January 2001;

(d) Bank statements in respect of all any bank accounts, including cheque accounts and credit cards held by the Husband with any financial institution within Australia and outside of Australia for the period 1 January 1999 to date;

Without limiting the obligations imposed upon the Husband in respect of compliance with this Order, the Husband be specifically ordered to produce his bank statements for the period 1 January 1999 to date in respect of his Barclays card no. ….

(e) Copies of all superannuation statements issued to the Husband in respect of all and any superannuation fund(s) held in his name for the period 1 July 1999 to date;

(f) Copies of any documents such as financial statements (including trust) and company Income Tax Returns, Balance Sheets, Profit & Loss Statement, Explanatory Notes or other documents, distribution minutes, minutes of directors internal meetings, memoranda and bank statements in his possession power and control regarding the company K Services Ltd (“the company”) for the financial years ended 30 June 2002 to financial year ended 30 June 2008 inclusive;

(g) Copies of any documents in his possession, power and control regarding his current residential accommodation at O, including copies of any lease, rental receipts, rate notices, utility bills and related documents in relation to the period of the Husband’s occupation of that property.

That the wife forthwith disclose and make available for inspection by the husband and his practitioners:

(a) Her personal income Tax Returns for the financial years ended 30 June 2006, 2007 and 2008, including Group Certificates and Notices of Assessment from the Australian Taxation Office;

(b) Copies of all superannuation statements and contribution statements provided to the Applicant wife in relation to all superannuation funds and monies held in her name for the period 1 July 2005 to the current date;

(c) All bank statements in respect of all bank accounts, and all credit card statements, in the name of the wife alone or jointly with any other person for the years 2006, 2007 and 2008 to date;

(d) The relevant entries in the diary notes of the wife referred to in paragraph 51 of the affidavit filed by her on 22 October 2008.

That the wife file and serve electronically to my Associate by 4.00pm on 26 November 2008, any submission upon which she intends to rely in relation to the issue of the costs reserved by Morgan J on 21 September 2005.

That each party have leave to issue subpoenae returnable before me at 9.00am on 17 December 2008.

That the costs of this application (if any) be reserved to the hearing on 17 December 2008.

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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Citations

AGLC Citation

K & K [2008] FamCA 957

Most Recent Citation

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

Cases citing this decision · 6 of 6 shown

WARNE & RANSLEY
[2020] FamCA 430 Para 3

…In K & K [2008] FamCA 957, the husband was previously the director of a number of companies and subsequently tried to distance himself from those companies around the time of separation. The wife sought disclosure in relation to the companies. The companies were now owned and controlled by members of the husband’s…
Peters and Giannopoulos & Ors
[2017] FamCA 663 Para 4

…In K & K [2008] FamCA 957, the husband was previously the director of a number of companies and subsequently tried to distance himself from those companies around the time of separation. The wife sought disclosure in relation to the companies. The companies were now owned and controlled by members of the husband’s…
Uzunlar & Uzunlar
[2017] FamCA 111 Para 9

…I agree with the suggestion of Cronin J in K & K [2008] FamCA 957, wherein his Honour stated that a less strict approach than the “direct relevance” test should be applied in the preliminary stages of disclosure as between the parties when the issues in the proceedings are yet to fully crystallise.[62] His Honour e…
Yates & Wilcox & Ors
[2016] FamCA 518 Para 7

…I agree with the suggestion of Cronin J in K & K [2008] FamCA 957, wherein his Honour stated that a less strict approach than the “direct relevance” test should be applied in the preliminary stages of disclosure as between the parties when the issues in the proceedings are yet to fully crystallise.[34] [34] at [19]…
Massalski and Riley
[2016] FamCA 144 Para 5

…I agree with the suggestion of Cronin J in K & K [2008] FamCA 957, where his Honour suggested that a less strict approach than the “direct relevance” test should be applied in the preliminary stages of disclosure as between the parties when the issues in the proceedings are yet to fully crystallise.[36] [36] at [19…
Jinson and Fletcher (No 2)
[2015] FamCA 1153 Para 1

…bligation in proceedings in this court, the authorities and the rules make the position particularly about relevance, clear (see rule 13.01(1), K & K [2008] FamCA 957, Strachan & Strachan (Interim Financial Disclosure Orders) [2010] FamCA 423, Woley and Humboldt (no 3) [2009] FamCA 546, Briese and Briese (1986) FLC…

View all 6 citing cases →

Cases cited in this decision · 5 of 5 shown

B Pty Ltd and Ors & K and Anor
[2008] FamCAFC 113 Para 5

…a comparatively very limited nature and may not call for any substantial participation in proceedings by the third parties. [4] B Pty Ltd & K & K [2008] FamCAFC 113 Paragraphs 63-64 per Faulks DCJ, Coleman and Warnick JJ.…
Compagnie Financiere du Pacifique v Peruvian Guano Co
(1882) 11 QBD 55 Para 1

…ry, moving away from the very broad definitions of discovery provided for in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (“ Peruvian Guano Case” ). [1] Explanatory Statement Family Law Rules 2004 p 60.…
Commissioner for Railways v Small
(1938) 38 SR 564 Para 2

…t may be useful to measure it against what is not relevant, and that is held to be when a party is seen to be going on a “fishing expedition”. In Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575 “fishing expedition” is defined as an exercise “endeavouring not to obtain evidence to support a case, but to discover whether the…
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co
(1882) 11 QB 55 Para 1

…ought to provide a “fundamental shift in the attitude” [1] of discovery, moving away from the very broad definitions of discovery provided for in Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 (“ Peruvian Guano Case” ). [1] Explanatory Statement Family Law Rules 2004 p 60.…
[1980] 1 WLR 627
[1980] 1 WLR 627 Para 1

…The House of Lords in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627 considered the phrase “possession, custody or power” and held that it is in reference to the past and present but not the future and therefore that a party who does not have a present power over a document, is not obliged to take steps to ob…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention (from Para 1)