MacDowell & Williams & Ors - [2012] FamCA 479

FAMILY COURT OF AUSTRALIA

MACDOWELL & WILLIAMS AND ORS

[2012] FamCA 479

FAMILY LAW - PRACTICE AND PROCEDURE - Subpoenas - Objection to subpoena by the Applicant Wife's parents - Where subpoena seeks to have the Wife's parents provide information regarding their wills and their corporate and trust structures, of which the Applicant Wife is a beneficiary - Where the Wife's parents submit that such subpoena is an invasion of privacy, an abuse of process and a 'fishing expedition' for irrelevant documents

Family Law Rules 2004 (Cth)

Keach & Keach [2011] FamCA 192
Kennon v Spry (2008) FLC 93-388

APPLICANT:

Ms F G MacDowell

RESPONDENT:

Mr Williams

INTERVENOR:

Mr J MacDowell and Ms G MacDowell

FILE NUMBER:

BRC

11260

2010

DATE DELIVERED:

22 June 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

30 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk SC

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim

COUNSEL FOR THE RESPONDENT:

Mr Phillips

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Sullivan SC

SOLICITOR FOR THE INTERVENOR:

Hemming & Hart

Orders

Upon the undertaking of the Intervenors that the documents identified in paragraphs 2 to 4 (inclusive) and 9(d) in relation to the F G MacDowell Discretionary Trust will be provided to the Respondent, the subpoena filed 4 October 2011 be set aside.
In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to these proceedings:
(a) Each party file within a further 14 days written submissions in respect of that issue; and
(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.
In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to …@familycourt.gov.au
The matter otherwise be adjourned to the Registry for further mention.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDowell & Williams and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11260 of 2010

Ms F G MacDowell

Applicant

And

Mr Williams

Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 1 December 2012, Ms F G MacDowell (“the Wife”) sought final property Orders relating to her former marriage with Mr Williams (“the Husband”). The Wife was born in 1964 and is thus now 47 years of age. The Husband was born in 1947 and is thus now 64 years of age. The parties commenced cohabitation in about 2003, married in April 2004 and then separated on a final basis on 12 July 2010. There were no children of the relationship.
By way of subpoena filed on 4 October 2011 (“the subpoena”), the Husband…

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 MacDowell & Williams & Ors

Details

AGLC: MACDOWELL & WILLIAMS AND ORS [2012] FamCA 479
Case: [2012] FamCA 479
Decision Date: 22 June 2012

CaseChat Overview and Summary

The proceedings before Kent J concerned a dispute involving the parties MacDowell & Williams & Ors, where a subpoena had been filed on 4 October 2011. The Intervenors provided an undertaking to the Respondent regarding the provision of specific documents related to the F G MacDowell Discretionary Trust.

The central legal issue before the court was whether the subpoena filed by the Respondent should be set aside, contingent upon the Intervenors' undertaking to produce certain documents. The court was also required to determine the appropriate costs order for the proceedings, should the parties be unable to reach an agreement.

Kent J ordered that the subpoena be set aside upon the Intervenors' undertaking to provide the identified documents to the Respondent. In relation to costs, the court stipulated a process for the parties to file written submissions if they could not agree on a costs order within 21 days, with the issue to be determined in chambers unless otherwise contended. If the parties reached an agreement on costs, they were at liberty to file minutes of consent. The matter was otherwise adjourned for further mention.

Orders

Orders of the court

Upon the undertaking of the Intervenors that the documents identified in paragraphs 2 to 4 (inclusive) and 9(d) in relation to the F G MacDowell Discretionary Trust will be provided to the Respondent, the subpoena filed 4 October 2011 be set aside.

In the event that the parties are unable to agree in writing within 21 days of today what costs Order, if any, might be made regarding the costs of and incidental to these proceedings:

(a) Each party file within a further 14 days written submissions in respect of that issue; and

(b) Unless either party otherwise therein contends to the contrary, that issue be determined in chambers without the necessity of further appearance by either party.

In the event that the parties reach agreement in writing on the issue of costs, they be at liberty to file jointly, minutes of consent via e-mail to …@familycourt.gov.au

The matter otherwise be adjourned to the Registry for further mention.

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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