Kayce & Wilda - [2023] FedCFamC1F 1140

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kayce & Wilda [2023] FedCFamC1F 1140

File number: MLC 14481 of 2022

Judgment of: STRUM J

Date of judgment: 11 December 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where objection taken on grounds of subpoena not being bona fide for the purpose of obtaining relevant evidence; constituting fishing; and the requirement to comply with the subpoena being oppressive – Where submissions were directed to lack apparent relevance, however no application made to amend grounds of objection – Where duty of disclosure has not been complied with – Discussion of the principle of apparent relevance – Where the bar for establishing apparent relevance is not high – Notices of Objection dismissed – Order for costs made.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASC 419; [2005] SASC 292

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

Hunt v Russell and De Pinto (1995) 63 SASR 402

Merhi & Merhi and Ors (No. 3) [2018] FamCA 961

Ryder & Lee [2009] FamCA 531

Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476; [2011] FamCAFC 159

Division: Division 1 First Instance

Number of paragraphs: 40

Date of hearing: 11 December 2023

Place: Melbourne

Counsel for the Applicant: Mr Eley

Solicitor for the Applicant: Blackwood Family Lawyers

Counsel for the Respondent: Mr Sweeney

Solicitor for the Respondent: Sayer Jones

Counsel for the Interested Party: Dr Ingleby

Solicitor for the Interested Party: Barry Nilsson Lawyers
ORDERS

MLC 14481 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KAYCE

Applicant

AND:
MR WILDA

Respondent

MS MODESTO

Interested Party

ORDER MADE BY:

STRUM J

DATE OF ORDER:

11 DECEMBER 2023

THE COURT ORDERS THAT:
1.All Notices of Objection filed by the interested party on 14 November 2023 be dismissed.
2.The interested party pay the applicant wife’s costs of this day in the fixed sum of $2,040.64.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kayce & Wilda has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
STRUM J:

On 2 October 2023, the applicant wife caused to be issued…

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 Kayce & Wilda

Details

AGLC: Kayce & Wilda [2023] FedCFamC1F 1140
Case: [2023] FedCFamC1F 1140
Decision Date: 11 December 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) recently dismissed objections raised by an interested party to subpoenas issued by the applicant in a family law matter. The parties involved were Ms Kayce, the applicant, Mr Wilda, the respondent, and Ms Modesto, the interested party. The dispute centred around objections to subpoenas, with the interested party arguing that they were not bona fide, constituted fishing, and their enforcement would be oppressive. Additionally, the interested party claimed that the subpoenas lacked apparent relevance to the issues at hand.

The court was required to determine whether the objections raised by the interested party were valid. The court considered the principles of apparent relevance and the standard required to establish it, noting that the threshold was not high. The court also examined whether the duty of disclosure had been fulfilled. Despite the submissions made by the interested party, no application was made to amend the grounds of objection. Given these factors, the court found that the objections were not well-founded.

In its decision, the court dismissed all Notices of Objection filed by the interested party. The court further ordered the interested party to pay the applicant's costs, amounting to $2,040.64. The form of the order is subject to review and amendment as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

MLC 14481 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS KAYCE

Applicant

AND:

MR WILDA

Respondent

MS MODESTO

Interested Party

ORDER MADE BY:

STRUM J

DATE OF ORDER:

11 DECEMBER 2023

THE COURT ORDERS THAT:

1. All Notices of Objection filed by the interested party on 14 November 2023 be dismissed.

2. The interested party pay the applicant wife’s costs of this day in the fixed sum of $2,040.64.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	MLC 14481 of 2022
Judgment of:	STRUM J
Date of judgment:	11 December 2023
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where objection taken on grounds of subpoena not being bona fide for the purpose of obtaining relevant evidence; constituting fishing; and the requirement to comply with the subpoena being oppressive – Where submissions were directed to lack apparent relevance, however no application made to amend grounds of objection – Where duty of disclosure has not been complied with – Discussion of the principle of apparent relevance – Where the bar for establishing apparent relevance is not high – Notices of Objection dismissed – Order for costs made.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Andrew Garrett Wine Resorts v National Australia Bank Ltd (No. 6) (2005) 92 SASC 419; [2005] SASC 292 Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 Hunt v Russell and De Pinto (1995) 63 SASR 402 Merhi & Merhi and Ors (No. 3) [2018] FamCA 961 Ryder & Lee [2009] FamCA 531 Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476; [2011] FamCAFC 159
Division:	Division 1 First Instance
Number of paragraphs:	40
Date of hearing:	11 December 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Eley
Solicitor for the Applicant:	Blackwood Family Lawyers
Counsel for the Respondent:	Mr Sweeney
Solicitor for the Respondent:	Sayer Jones
Counsel for the Interested Party:	Dr Ingleby
Solicitor for the Interested Party:	Barry Nilsson Lawyers

MLC 14481 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KAYCE Applicant
AND:	MR WILDA Respondent
MS MODESTO Interested Party

ORDER MADE BY:	STRUM J
DATE OF ORDER:	11 DECEMBER 2023