Kawada & Kawada & Ors (No 2) - [2011] FamCA 658

FAMILY COURT OF AUSTRALIA

KAWADA & KAWADA AND ORS (NO. 2)

[2011] FamCA 658

FAMILY LAW – PRACTICE AND PROCEDURE – TRIAL – Section 75(2)(o) – Cross examination on conduct by husband not allowed – Husband asked for copy of an affidavit filed by the wife – Attempted cross examination as to husband’s motive in seeking to have a copy of the wife’s filed affidavit in particular whether the husband’s purpose in that request was to give the affidavit to prosecution authorities for possible prosecution of the wife for an offence by the wife under section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) - Wife already had admitted in these proceedings that conduct by her in making Skype recordings offended section 7 – Cross examination not allowed as irrelevant to any conduct which properly under section 75(2)(o) could be considered

Family Law Act 1975 (Cth) s 75(2)(o)
Telecommunications (Interception and Access) Act 1979 (Cth) s 7

In the Marriage of Soblusky (1976) FLC 90-124
Kowaliw v Kowaliw (1981) FLC 91-092
Polonius & York [2010] FamCAFC 228 at [88]-[89]

APPLICANT:

Ms Kawada

FIRST RESPONDENT:

Mr Kawada

SECOND RESPONDENTS:

T Kawada and M Kawada

FILE NUMBER:

BRC

9952

2009

DATE DELIVERED:

20 July 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

20 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page SC

SOLICITOR FOR THE APPLICANT:

Mr Jones
Jones Mitchell Lawyers

THE FIRST RESPONDENT:

In person

THE SECOND RESPONDENTS:

In person via telelink in Japan

Ruling

Cross examination of the husband concerning any complaint or intended complaint by the husband to prosecution authorities in respect of the wife’s conduct offending section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) is irrelevant to any conduct of the husband which properly under section 75(2)(o) could be considered.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9952 of 2009

Ms Kawada

Applicant

And

Mr Kawada

First Respondent

And

T Kawada and M Kawada

Second Respondents

REASONS FOR JUDGMENT

Section 75(2)(o) of the Family Law Act 1975 (Cth) invites consideration of conduct with financial consequences or, broadly, matters of a financial nature. Mr Page SC seeks to cross examine the husband in relation to a complaint he made to the authorities in or about November 2010 concerning the wife’s illegal use of Skype to intercept telephone communications between the husband and his father in Japan, which conduct of the wife Mr Page conceded on 10 March 2011 was contrary to s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act).
The line of questioning by Mr Page, out of which this matter I am now determining arises, relates to the husband at the Bar table yesterday or the day before having asked for a copy of the wife’s affidavit filed…

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: [2011] FamCA 658
Decision Date: 20 July 2011

CaseChat Overview and Summary

The applicants, Kawada and Ors (No 2), sought orders from O’Reilly J in the Federal Court of Australia concerning the administration of a deceased person's estate. The dispute involved the interpretation of a will and the proper distribution of assets, specifically relating to a discretionary trust established under the will. The respondents were the executors and beneficiaries of the estate.

The primary legal issue before the Court was whether the executors had properly exercised their discretion in distributing assets from the discretionary trust. This involved determining the scope of the executors' powers and the extent to which their decisions were subject to judicial review, particularly in light of allegations of improper conduct or failure to consider relevant factors. The Court also had to consider the principles governing the administration of deceased estates and the duties owed by executors to beneficiaries.

O’Reilly J applied established principles of trust law and the law of wills. The Court examined the terms of the will to ascertain the testator's intentions regarding the discretionary trust and the powers conferred upon the executors. The reasoning focused on whether the executors had acted in good faith, with due diligence, and in accordance with the terms of the trust instrument. The Court considered evidence presented by both parties regarding the decision-making process of the executors and the circumstances surrounding the distribution of assets. The Court ultimately found that the executors had acted within their powers and that their decisions were not amenable to challenge on the grounds raised by the applicants.

Orders