McKinnon and McKinnon - [2009] FamCA 921

FAMILY COURT OF AUSTRALIA

MCKINNON & MCKINNON

[2009] FamCA 921

FAMILY LAW – PROCEDURAL – Interim orders

APPLICANT:

Ms McKinnon

RESPONDENT:

Mr McKinnon

FILE NUMBER:

ADC

2488

2007

DATE DELIVERED:

25 August 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

25 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berman

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Whittle

SOLICITOR FOR THE RESPONDENT:

Robinson Mason

Orders

That the wife have leave pursuant to Rule 15.52 of the Family Law Rules 2004 to tender the report of Mr C dated 18 May 2009 which is annexed to the wife’s affidavit filed on 20 May 2009 and to adduce evidence from Mr C in relation to the six issues identified in the letter of Mr C dated 20 August 2009 annexed to the affidavit filed by the wife’s solicitor on 21 August 2009.
That the husband have leave pursuant to Rule 15.52 of the Family Law Rules 2004 to tender the report of Mr V dated 6 July 2009 and which is annexed to the husband’s affidavit filed on 20 August 2009 and to adduce evidence from Mr V in relation to the six issues referred to in the previous order.
That on or before 4:00pm on 12 October 2009 the wife file and serve her affidavit of evidence in chief.
That on or before 4:00pm on 12 October 2009 the husband file and serve his affidavit of evidence in chief and the affidavits of evidence in chief of Mr D McKinnon and Mr H.
That by 4:00pm on 12 October 2009 each party file and serve an updated statement of financial circumstances.
That further consideration of this case be adjourned to 9:30am on 23 October 2009.

IT IS NOTED that publication of this judgment under the pseudonym McKinnon & McKinnon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2488 of 2007

MS MCKINNON

Applicant

And

MR MCKINNON

Respondent

EX TEMPORE REASONS

This matter came before me first on 15 June 2009 when it was listed for the first day before a judge on the issue of property settlement. There is no consent to the matter being heard under division 12A. The principal asset, the subject of these proceedings, is the husband’s interest in the M Group of Companies. The wife instructed Mr C to value that interest and he provided a report dated 18 May 2009. On 20 May 009 the wife made an application for leave to tender that report and adduce evidence from Mr C. That application was before me on 15 June but it was not proceeded with at that stage. I was told that there were still discussions between the parties as to the valuation of the husband’s interest in the M Group and it was hoped that agreement could be reached.
The matter was then adjourned ultimately for the purpose of procuring…

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 McKinnon and McKinnon

Details

AGLC: McKinnon and McKinnon [2009] FamCA 921
Case: [2009] FamCA 921
Decision Date: 25 August 2009

CaseChat Overview and Summary

In the matter of *McKinnon and McKinnon*, Strickland J considered applications by both the wife and the husband for leave to tender expert reports and adduce evidence from those experts. The dispute concerned issues arising in family law proceedings.

The primary legal issues before the court were whether to grant leave for the wife to tender a report from Mr C and adduce evidence from him concerning six identified issues, and whether to grant leave for the husband to tender a report from Mr V and adduce evidence from him regarding the same six issues.

Strickland J applied Rule 15.52 of the Family Law Rules 2004, which governs the tendering of expert evidence. The court reasoned that granting leave to both parties to present expert evidence on the identified issues would facilitate a comprehensive determination of the matters in dispute. The court also made directions regarding the filing and service of affidavits of evidence in chief by both parties and specific individuals, as well as updated statements of financial circumstances.

The court ordered that leave be granted to both parties as sought, and adjourned further consideration of the case to a specified date.

Orders

Orders of the court

That the wife have leave pursuant to Rule 15.52 of the Family Law Rules 2004 to tender the report of Mr C dated 18 May 2009 which is annexed to the wife’s affidavit filed on 20 May 2009 and to adduce evidence from Mr C in relation to the six issues identified in the letter of Mr C dated 20 August 2009 annexed to the affidavit filed by the wife’s solicitor on 21 August 2009.

That the husband have leave pursuant to Rule 15.52 of the Family Law Rules 2004 to tender the report of Mr V dated 6 July 2009 and which is annexed to the husband’s affidavit filed on 20 August 2009 and to adduce evidence from Mr V in relation to the six issues referred to in the previous order.

That on or before 4:00pm on 12 October 2009 the wife file and serve her affidavit of evidence in chief.

That on or before 4:00pm on 12 October 2009 the husband file and serve his affidavit of evidence in chief and the affidavits of evidence in chief of Mr D McKinnon and Mr H.

That by 4:00pm on 12 October 2009 each party file and serve an updated statement of financial circumstances.

That further consideration of this case be adjourned to 9:30am on 23 October 2009.

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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