Legal Research
Cases
Kerr & Christie

Kerr & Christie

Case [2021] FedCFamC1F 313 17 December 2021

Type to search within this case.

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kerr & Christie [2021] FedCFamC1F 313

File number(s): SYC 3851 of 2020

Judgment of: RIETHMULLER J

Date of judgment: 17 December 2021

Catchwords: FAMILY LAW – Procedure – Production of documents – Subpoenas – Setting aside or other Relief – Subpoena seeking documents from trustee of discretionary trust of which wife is a beneficiary or object – Objections by trustee to production – Relevance of documents – Limited production of documents required.

Legislation:
Family Law Act 1975 (Cth), ss.75(2), 79, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r.14.07

Cases cited:
Alister & The Queen (1983) 154 CLR 404
Baumann & Rushbrooke [2016] FamCA 905
Hall & Hall [2016] HCA 23; (2016) 257 CLR 490
Kennon v Spry [2008] HCA 56
Livesey v Jenkins [1984] UKHL 3 at 7; [1985] 1 AC 424
Martin & Martin (No.2) [2014] FamCA 232;
Sadek and Ors & Hall and Anor [2015] FamCAFC 23
Saunders v Vautier [1841] EWHC Ch J82
Schmidt v Rosewood Trust Ltd (Isle of Man) [2003] UKPC 26

X Pty Ltd and Ors & Merhi [2015] FamCA 622

Division: Division 1 First Instance

Number of paragraphs: 29

Date of hearing: 16 November 2021

Place: Parramatta

Counsel for the Applicant: Mr Potts SC with him Mr Langshaw

Solicitor for the Applicant: Speed & Stacey Lawyers

Counsel for the First Respondent: Mr O’Brien

Solicitor for the First Respondent: Russell Kennedy Aitken Lawyers

Solicitor for the Second Respondent: Barkus Doolan
ORDERS

SYC 3851 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
J PTY LTD

Applicant

AND:
MR KERR

First Respondent

MS CHRISTIE

Second Respondent

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.Orders 17 and 18 of the orders made by the Registrar on 17 September 2021 be discharged.
2.The words “Financial Statements including any profit and loss statements” and the words “asset schedules” be struck from Item 4 and the whole of Item 5 be struck from the subpoena issued by the husband on 10 March 2021 to J Pty Ltd.
3.The time for J Pty Ltd to produce documents to the Court at schedule item 4 of the subpoena issued by the husband on 10 March 2021 is extended until 4.00 pm on 17 January 2022 and that the parties be granted inspection and photocopying access.
4.In the event that either party seeks a costs order, that party file and serve brief submissions in writing by 31 December 2021 and the other party file and serve and brief submissions in response by 21 January 2022.

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…

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 Kerr & Christie

Details

AGLC: Kerr & Christie [2021] FedCFamC1F 313
Case: [2021] FedCFamC1F 313
Decision Date

CaseChat Overview and Summary

In Kerr & Christie, the applicant, J Pty Ltd, was subpoenaed to produce documents. The husband, who is the applicant in the property settlement proceedings, sought financial statements and tax returns from the trust of which the wife is a beneficiary. The applicant objected to the subpoena on the basis that the documents were irrelevant and should not be produced. The matter was referred to a registrar who made orders extending the time for production and allowing the parties to inspect and photocopy the documents produced. The applicant sought to have the subpoena set aside, or alternatively, to limit the material that would be provided in response to the subpoena and to restrict access to the material to the parties' legal representatives.

The court considered the obligations of parties to make full and frank disclosure of all material facts to the other party and the court, and the heavy obligation on parties in property cases to make complete disclosure. The court found that the wife's interest in the trust was a financial resource of the wife pursuant to s 75(2) of the Family Law Act 1975 (Cth). However, the court was not persuaded that it was appropriate to allow the husband to pursue the subpoena for the documents relating to the financial affairs of the Trust. The court was more persuaded that the husband should have the documents setting out the dates, identity of beneficiaries, and amounts distributed for the periods that he seeks but that the objection to the production of the financial documents should be upheld. The time frame for production should be extended until after the Christmas holiday period to enable the documents to be produced.

The court discharged orders 17 and 18 as made by the registrar and ordered that the words “Financial Statements including any profit and loss statements” and the words “asset schedules” be struck from Item 4 and the whole of Item 5 be struck from the subpoena issued by the husband on 10 March 2021 to J Pty Ltd. The time for J Pty Ltd to produce documents to the court at schedule item 4 of the subpoena issued by the husband on 10 March 2021 is extended until 4pm on 17 January 2022 and that the parties be granted inspection and photocopying access.

Orders