Liatos & Liatos and Anor - [2008] FamCAFC 111

FAMILY COURT OF AUSTRALIA

LIATOS & LIATOS AND ANOR

[2008] FamCAFC 111

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – INTERLOCUTORY ORDER – Where trial Judge discharged an interlocutory injunction restraining the husband from leaving Australia – Where property proceedings pending – Where wife asserted husband had significant undisclosed assets overseas – Where wife asserted husband had forged documents and that he would not return to Australia if criminal proceedings were brought against him – Where wife asserted her s 79 entitlements incapable of enforcement by way of contempt proceedings if husband overseas – Where wife asserted trial Judge had failed to rule on admissibility of expert forensic document examiner’s report – Where no leave sought or granted for appointment of document examiner – Where assertion trial Judge had not applied the “proper test” in his consideration of balance of convenience –– Consideration of proper test to be applied in determining whether or not to grant an interlocutory injunction –Where reasons of trial Judge alleged to have been inadequate – Where no error of principle or substantial injustice established – Application dismissed.

FAMILY LAW - APPLICATION TO AMEND PROPOSED GROUNDS OF APPEAL – Where wife’s application to amend the proposed grounds of appeal filed at the ‘eleventh hour’ – Where amended ground alleged denial of natural justice – Where no prejudice to husband – Application allowed.

FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – Where wife sought to adduce evidence of project in Romania and material relevant to a company now in liquidation – Where material if relevant could be the subject of further proceedings at first instance – Where material sought to be relied on already before the trial Judge – Where material sought to be adduced contentious – Application refused.

FAMILY LAW - COSTS – Where applicant wife was wholly unsuccessful – Applicant wife ordered to pay respondent husband’s costs of this application but order stayed pending determination of property proceedings.

Evidence Act 1995 (Cth) – s 69, s 102
Family Law Act 1975 (Cth) – s 79, s 94AA

Family Law Rules 2004 (Cth) – Pt 15

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
American Cyanamid v Ethicon [1975] A.C. 296
Australian Broadcasting Corporation v O’Neill (2005-06) 227 CLR 57
Australian Course Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 393
Mullen & De Bry (2006) FLC 93-293
Rutherford & Rutherford (1991) FLC 92-225

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

Ms Liatos

1ST RESPONDENT:

Mr Liatos

2ND RESPONDENT:

J Capital Limited

FILE NUMBER:

SYC

579

2007

APPEAL NUMBER:

102

2007

DATE DELIVERED:

25 July 2008

ORDERS MADE:

PLACE DELIVERED:

20 December 2007

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Boland JJ

HEARING DATE:

12 December 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 August 2007

LOWER COURT MNC:

[2007] FamCA 945

REPRESENTATION

COUNSEL FOR THE APPELLANT:

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: [2008] FamCAFC 111
Decision Date: 25 July 2008

CaseChat Overview and Summary

In the case of Liatos & Liatos and Anor, the applicant wife sought leave to appeal against the decision of the trial judge who had discharged an interlocutory injunction which restrained the husband from leaving Australia. The dispute involved property proceedings and allegations of undisclosed overseas assets, forgery of documents, and concerns about the husband's potential flight from the jurisdiction if faced with criminal proceedings. The wife argued that the trial judge had failed to rule on the admissibility of an expert forensic document examiner’s report, had not applied the correct test in considering the balance of convenience, and that his reasons were inadequate.

The court examined the wife's claims of error, particularly regarding the trial judge's handling of the forensic document examiner’s report. The wife contended that the trial judge failed to address the admissibility of the report, despite the husband's objections. However, the court found that the wife's senior counsel had not pursued the admissibility of the report after the initial submissions, and had instead focused on the admissibility of the business records annexed to the report. The court concluded that the trial judge's reasons were adequate, and that no error of principle or substantial injustice had been demonstrated.

The court also considered the wife's application to amend the proposed grounds of appeal, which was filed at the last minute. The wife sought to include a ground alleging a denial of natural justice. The court allowed the amendment, noting that no prejudice was caused to the husband. Additionally, the wife's application to adduce further evidence was refused, as the material sought was contentious and had already been before the trial judge. Lastly, the wife, being wholly unsuccessful in her application, was ordered to pay the husband's costs of the application, though this order was stayed pending the determination of the property proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Later in his reasons, at paragraph 257 the trial Judge said:The Wife also contends that she observed documents that appear to purport to contain her signature but upon inspection she formed the view that the signatures are not hers but a forgery of her signature. She said that as a consequence she instructed her solicitor to instruct an expert to prepare a report with respect to the signatures that appeared to be forgeries of her signature as well as the signature of her father, [AB], and her mother, [CB]. The Wife’s solicitor retained Mr Paul Westwood who is a forensic document expert and he prepared a report dated 22 June 2007 a copy of which was attached to the Wife’s affidavit. The Husband objects to the receipt of this report into evidence. As I indicated during discussion, in dealing with the current applications I have ignored the opinions of Mr Westwood (our emphasis). Having dealt with matters raised by the wife in support of the interlocutory relief sought, his Honour turned to the assertions of forgery made by the wife. His Honour was critical of the wife’s failure to refer to her draft affidavit, to conversations with the husband, and the inference which could be drawn from what the wife contended she discovered in June 2007. It is convenient for us to now deal with the asserted error by the trial Judge, namely that he failed to make a ruling on the admissibility of the forensic document examiner’s report. Before us, counsel for the wife argued that although senior counsel for the husband proceeded before the trial Judge on the basis there was an agreement the annexures to the forensic document examiner’s report would be admitted as business records, but not the report itself, that this assumption was incorrect, and that a reading of the transcript in context supported the assertion that senior counsel for the wife was referring only to one document (No 107) annexed to the report. Thus he submitted the trial Judge failed to deal with the objection raised by the husband’s senior counsel. It was also asserted that the admissibility of the report was raised on the re-opening on 27 August 2007. The transcript relevant to the “concession” does not, on our reading, imply the limitation for which the wife’s counsel contends. The transcript reveals that the trial Judge was taken to a number of documents being business records annexed to the wife’s affidavit, not just document numbered 107, some of which were tendered by her senior counsel as exhibits. This was an interlocutory application where the wife was represented at the hearing by senior counsel. On the appeal, counsel for the wife did not take us to any material in the transcript where the wife’s senior counsel sought, after his initial submissions which we have set out above, to have his Honour make a ruling on the admissibility of the forensic document examiner’s report. Our reading of the transcript makes it clear that the issue of the report itself was not pressed by senior counsel for the wife who was content, understandably where the report sought to be tendered was not filed in accordance with the rules, to have before the trial Judge the documents annexed to the report on the basis those documents were properly admissible as business records (see s 69 of the Evidence Act).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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