Kerr & Christie (No 2) - [2022] FedCFamC1F 285

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kerr & Christie (No 2) [2022] FedCFamC1F 285

File number(s): SYC 3851 of 2020

Judgment of: WILSON J

Date of judgment: 2 May 2022

Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING LIST – application to vacate trial dates – application refused.

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Cameron v Cole (1944) 68 CLR 571

Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353

Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11

Hsiao v Fazarri (2020) 94 ALJR 961

Kerr & Christie [2021] FedCFamC1F 313

McGibbon v Linkenbagh (1996) 62 IR 426

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597

Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82

Standard v Stanford (2012) 247 CLR 108

Sullivan v Dept of Transport (1978) 20 ALR 323

Woodcock & Woodcock [2021] FedCFamC1F 88

Division: Division 1 First Instance

Number of paragraphs: 25

Date of hearing: 1 April 2022

Place: Melbourne

Counsel for the Applicant: Mr S. Williams QC

Solicitor for the Applicant: Russell Kennedy Aitken Lawyers

Counsel for the Respondent: Mr L. Glick QC

Solicitor for the Respondent: Barkus Doolan
ORDERS

SYC 3851 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KERR

Applicant

AND:
MS CHRISTIE

Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

2 MAY 2022

THE COURT ORDERS THAT:
1.The trial of this proceeding remains listed to commence at 10:00am on 1 August 2022.
2.On or before noon on 9 May 2022 the parties must prepare and submit a minute of agreed orders.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION

On 8 February 2022 I fixed the trial of this proceeding in the Major Complex Financial Proceedings List to commence before me on 1 August 2022. In paragraphs 6 and 7 of those orders I required certain steps in relation to valuations to be completed by 22 March 2022 and I adjourned the proceeding for mention on 1 April 2022.
On 1 April 2022 Mr S. J. Williams, One of Her Majesty’s Counsel for the husband submitted before me that the trial should not go ahead on…

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 (No 2)

Details

AGLC: Kerr & Christie (No 2) [2022] FedCFamC1F 285
Case: [2022] FedCFamC1F 285
Decision Date

CaseChat Overview and Summary

In Kerr & Christie (No 2) [2022] FedCFamC1F 285, the Federal Circuit and Family Court of Australia (Division 1) was called upon to decide an application to vacate a trial date in a complex financial proceeding. The applicant, Mr Kerr, sought to adjourn the trial date set for 1 August 2022, primarily due to the pendency of an appeal against an earlier decision made by Riethmuller J. The appeal concerned the scope of discovery in relation to documents held by a trust controlled by the respondent's mother. The court was tasked with balancing the need to ensure procedural fairness against the imperatives of efficient case management, particularly in the context of the Major Complex Financial Proceedings List.

The court carefully considered the arguments presented by both parties, weighing the potential impact of the pending appeal on the preparation for trial against the importance of adhering to the trial date. It noted that the appeal, which pertained to a relatively discrete issue of document disclosure, did not warrant a delay in the overall progression of the case. Furthermore, the court highlighted the husband's uncooperative conduct in advancing the case, which was inconsistent with the expectations for litigation in the Major Complex Financial Proceedings List. Justice Wilson concluded that the appeal's uncertain outcome and limited scope did not justify a significant delay in the trial, and that both parties should proceed with trial preparations while the appeal was pending.

The court refused the application to vacate the trial date, ordering the trial to proceed as scheduled on 1 August 2022. It also directed the parties to recalibrate their deadlines for compliance with certain procedural requirements within seven days of the judgment. This decision underscores the court's commitment to managing complex financial proceedings efficiently while ensuring that each party has a fair opportunity to present their case.

Orders