Kirke and Xuan and Anor - [2019] FamCA 537

FAMILY COURT OF AUSTRALIA

KIRKE & XUAN AND ANOR

[2019] FamCA 537

FAMILY LAW – LITIGATION GUARDIAN – case adjourned on the third day of trial – those costs thrown away – ordered previously to be paid on a date to be determined this day – date for payment ordered – other interlocutory orders made – costs of this day reserved – liberty to apply.

Family Law Act 1975, s 117(2A)

Krnjic v Bunnings Group Ltd (2018) 334 FLR 168
Vishniakov v Lay [2019] VSC 403

APPLICANT:

Ms Kirke

FIRST RESPONDENT:

Ms Xuan

SECOND RESPONDENT:

Ms Moye

FILE NUMBER:

MLC

8183

2015

DATE DELIVERED:

8 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

8 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Carne

SOLICITOR FOR THE APPLICANT:

WMB Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr G P Thompson

SOLICITOR FOR THE FIRST RESPONDENT:

Nevett Ford

COUNSEL FOR THE SECOND RESPONDENT:

Mr D Carlile

SOLICITOR FOR THE SECOND RESPONDENT:

Unite Legal

Orders

The husband provide to the solicitors for the wife copies of statements for the following accounts in the specified date ranges within seven days of these orders –
(a)       CBA Business transaction account …11 from 11 November 2014 to 30 September 2015 and 1 April 2016 to 30 June 2016;
(b)       CBA Kirke Pty Ltd account …18 from 11 February 2014 to 23 September 2015;
(c)       CBA account …28 from 1 January 2014 to 20 May 2015 and 1 March 2016 to 30 June 2016;
(d)       B Bank – Kirke2 Pty Ltd account 212160729 from 23 June 2012 to 22 June 2015;
(e)       CBA credit card …47 from 12 November 2014 to 11 September 2015;
(f)       B Bank – Kirke3 Pty Ltd atf Kirke Super Fund Account …61 from 26 September 2012 to 30 September 2015;
(g)       account ending in #...21 from 1 January 2014 to 31 December 2016; and
(h)       account ending in #...28 from 1 January 2014 to 31 December 2016.
The wife is to provide to the solicitors for the husband copies of the documents sought in the notice to produce pertaining to the wife filed by the husband on 8 August 2019 within seven days of these orders.
The second respondent is to provide to the solicitors for the husband a copy of the enduring power of attorney held by Ms Kirke on behalf of the second respondent within seven days of these orders.
The parties are to otherwise produce all financial documents as may be reasonably requested by another party in writing within seven days of such request and in the event that the party maintains that such documents have allegedly been produced then they shall confirm the date of production and provide to the requesting party a copy of the relevant covering correspondence.
The parties are to do all acts and things and sign all documents necessary to instruct C Lawyers solicitors to continue requesting the funds held in trust by that firm (upon…

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: [2019] FamCA 537
Decision Date: 8 August 2019

CaseChat Overview and Summary

This matter concerned an application before Wilson J, involving parties identified as the husband, the wife, and a second respondent, Ms Moye, represented by Ms Kirke. The dispute appears to centre on the disclosure of financial documents and the management of funds, with specific orders made regarding the production of bank statements and other financial records by the husband and the second respondent. The wife's application filed on 5 August 2019 was dismissed.

The court was required to determine the extent of financial disclosure necessary between the parties, including specific bank accounts and date ranges for statements. Further issues included the appointment of a case guardian for the second respondent and the management of funds held in trust by C Lawyers solicitors. The court also addressed the filing and serving of further affidavits by the parties and the payment of costs.

Wilson J ordered the husband to provide statements for several specified bank accounts within seven days. The second respondent was also ordered to provide an enduring power of attorney held by Ms Kirke on her behalf. The court further directed that parties should produce other reasonably requested financial documents within seven days of such a request, with provisions for confirming prior production. Ms Kirke was appointed as case guardian for the second respondent. All extant applications were adjourned, and specific timelines were set for the filing of further affidavits. The wife's application of 5 August 2019 was dismissed, and costs for that day were reserved.

Orders

Orders of the court

The husband provide to the solicitors for the wife copies of statements for the following accounts in the specified date ranges within seven days of these orders –

(a) CBA Business transaction account …11 from 11 November 2014 to 30 September 2015 and 1 April 2016 to 30 June 2016;

(b) CBA Kirke Pty Ltd account …18 from 11 February 2014 to 23 September 2015;

(d) B Bank – Kirke2 Pty Ltd account 212160729 from 23 June 2012 to 22 June 2015;

(e) CBA credit card …47 from 12 November 2014 to 11 September 2015;

(f) B Bank – Kirke3 Pty Ltd atf Kirke Super Fund Account …61 from 26 September 2012 to 30 September 2015;

(g) account ending in #...21 from 1 January 2014 to 31 December 2016; and

(h) account ending in #...28 from 1 January 2014 to 31 December 2016.

The wife is to provide to the solicitors for the husband copies of the documents sought in the notice to produce pertaining to the wife filed by the husband on 8 August 2019 within seven days of these orders.

The second respondent is to provide to the solicitors for the husband a copy of the enduring power of attorney held by Ms Kirke on behalf of the second respondent within seven days of these orders.

The parties are to otherwise produce all financial documents as may be reasonably requested by another party in writing within seven days of such request and in the event that the party maintains that such documents have allegedly been produced then they shall confirm the date of production and provide to the requesting party a copy of the relevant covering correspondence.

The parties are to do all acts and things and sign all documents necessary to instruct C Lawyers solicitors to continue requesting the funds held in trust by that firm (upon the maturation of the current term deposits) in thirty day term deposits pending further written agreement between the parties or order of the court.

Ms Kirke is to be appointed as the case guardian in this matter for the second respondent, Ms Moye.

The wife’s application in a case filed on 5 August 2019 is dismissed.

All extant applications are adjourned to 10am on 12 September 2019.

On or before 4pm on 28 August 2019 the second respondent is to file and serve any further affidavits.

10.

On or before 4pm on 9 September 2019 the applicant and first respondent are to file and serve any further affidavits in response to the second respondent’s affidavit.

11.

On or before 4pm on 22 August 2019 the second respondent is comply with order 6 of the order made on 13 June 2019 and pay the applicants costs thrown away in the sum of $10,672.40.

12.

The parties’ costs of this day are reserved.

13.

Each party has liberty to apply.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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