2.Set aside the orders of the Full Court of the Family Court of Australia made on 25 August 2006.
3.Remit the matter to a differently constituted Full Court of the Family Court of Australia for hearing and determination in accordance with the reasons of this Court.
4.The costs of the appeal to the Full Court, including the costs of the proceedings in that Court up to and including its order of 25 August 2006, are reserved to the Full Court that hears and determines the appeal to that Court.
On appeal from the Family Court of Australia
Representation
D J Fagan SC with V V Bedrossian for the appellant (instructed by Etheringtons Solicitors)
The respondent appeared in person
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ. This is an appeal from a decision of the Full Court of the Family Court of Australia which, by majority, (Holden and Coleman JJ, May J dissenting), allowed an appeal from Cohen J in relation to proceedings for contempt brought by the appellant against the respondent. Although the respondent was represented by senior and junior counsel at the application for special leave to appeal to this Court, she is without legal representation in the present appeal.
The proceedings for contempt arose out of orders made by Judicial Registrar Johnston on 30 August 1999, by Rose J on 7 September 1999 and by Cohen J on 2 November 2001. For present purposes the operative order was that of Rose J who, on 7 September 1999, ordered:
"That upon the wife giving the usual undertaking in relation to damages, I continue the orders made 30 August 1999 until further order."
The person referred to in that order as "the wife" was the present respondent. The orders made on 30 August 1999 were made by Judicial Registrar Johnston on the application of the present respondent and they included the following order:
"That pending further order of the Court, the Husband and the Wife be and are hereby restrained from selling, transferring, encumbering, alienating or otherwise dealing with any real property in which they currently have an interest."
There were two acts of the respondent that were said to have been in contravention of the order of Rose J. The first was that on or about 20 December 2001 she signed as mortgagor a mortgage over a property in which she had an interest, being a property known as the Quoin Island Resort in Queensland. The second was that on or about 14 February 2003 she signed as transferor a transfer of property in which she had an interest, being certain property at Katoomba in New South Wales.
The husband made an application to have the…
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 Mead v Mead
Sign in free to access the full text
Details
AGLC
Mead v Mead [2007] HCA 25
Case
[2007] HCA 25
Decision Date
CaseChat Overview and Summary
The appeal concerned proceedings for contempt brought by the appellant against the respondent, arising from orders relating to property dealings. The central issue before the High Court of Australia was whether the majority of the Full Court of the Family Court of Australia had erred in law regarding legal professional privilege when considering an appeal from a decision of Cohen J.
The High Court was required to determine whether the majority of the Full Court had erroneously concluded that the law of legal professional privilege prevented the drawing of inferences about a party's knowledge, even if the probable source of that knowledge was a privileged communication. Furthermore, the High Court needed to consider whether the Full Court had failed to properly consider the first ground of appeal before it, which alleged that Cohen J had erred in finding as a fact that the respondent was aware of the terms of certain orders.
The High Court held that the rule relating to legal professional privilege does not preclude the drawing of inferences about a party's knowledge from surrounding events and circumstances, even if a privileged communication is the likely source of that knowledge. The majority of the Full Court had incorrectly applied this principle, thereby impeding Cohen J's ability to draw the inference he did. Consequently, the High Court allowed the appeal, set aside the orders of the Full Court, and remitted the matter to a differently constituted Full Court for re-hearing and determination.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Family Court of Australia made on 25 August 2006.
3. Remit the matter to a differently constituted Full Court of the Family Court of Australia for hearing and determination in accordance with the reasons of this Court.
4. The costs of the appeal to the Full Court, including the costs of the proceedings in that Court up to and including its order of 25 August 2006, are reserved to the Full Court that hears and determines the appeal to that Court.