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MERRELL & MERRELL

MERRELL & MERRELL

Case [2019] FCCA 1184 8 May 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRELL & MERRELL

[2019] FCCA 1184

Catchwords:
FAMILY LAW – Applications for travel orders, enforcement of subpoena, contravention, issue of passports, adjournment, parenting orders, recusal – parties agree final parenting orders – respondent seeks adjustment of property interests – applicant bankrupt – respondent pursues investigation of applicant’s financial position – bankruptcy – failure to compete statement of affairs – respondent seeks production of financial records on subpoena – seeks suspension of period of operation of Airport Watch List order – property settlement – subpoena objection – parties agree in hearing of recusal application alone – applicable principles – orders made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.54, 178

Family Law Act 1975 (Cth), ss.67Z, 69ZN, 70NBA, 79

Cases cited:

Barakat v Goritsas (No 2) [2012] NSWCA 36

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Galea v Galea (1990) 19 NSWLR 263

GlaxoSmithKline v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150

Johnson v Johnson (2000) 201 CLR 488

Luck v Secretary, Department of Human Services [2017] FCA 540
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Sadasivam & Seshan [2019] FamCAFC 76
Ugur v Attorney-General for New South Wales [2019] NSWCA 86
Vakauta v Kelly (1989) 167 CLR 568
Wentworth v Rogers (No 12) (1987) 9 NSWLR 400

Articles: The Hon Bathurst CJ, Duties of Bar & Bench: Some reflections on case management and judicial bias: [2014] NSWJShol 20

Applicant:

MR MERRELL

Respondent:

MS MERRELL

File Number:

MLC 4595 of 2017

Judgment of:

Judge A Kelly

Hearing date:

30 April 2019

Date of Last Submission:

30 April 2019

Delivered at:

Melbourne

Delivered on:

8 May 2019

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Duffy

Solicitors for the Respondent:

Victoria Legal Aid

ORDERS

The Application in a Case filed on 18 April 2019, be dismissed.
By 4.00pm on Friday, 31 May 2019 the applicant file and serve any Amended Initiating Application seeking relief for the further parenting orders as set out in his Response filed on 17 April 2019.
By 4.00pm on Friday, 21 June 2019 the respondent file and serve any Amended Response to the Amended Initiating Application.
The following applications are listed for Interim Hearing on 1 July 2019:
(a)the Application in a Case filed on 6 March 2019;
(b)the Response to the Application in a Case filed on 17 April 2019;
(c)the Contravention Application filed on 6 March 2019;
(d)the Notices of Objection to the subpoena addressed to the Directors of ….
Save with leave of the Court no party may file or serve any further affidavits in relation to the applications addressed in paragraph (4) of this Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4595 of 2017

MR MERRELL

Applicant

And

MS MERRELL

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain why…

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 MERRELL & MERRELL

Details

AGLC: MERRELL & MERRELL [2019] FCCA 1184
Case: [2019] FCCA 1184
Decision Date: 8 May 2019

CaseChat Overview and Summary

In the matter of MERRELL & MERRELL, Judge A Kelly of the Family Court of Australia considered applications relating to parenting orders, property settlement, bankruptcy, and the enforcement of a subpoena. The parties had agreed on final parenting orders, but the respondent sought an adjustment of property interests, while the applicant was bankrupt and had failed to complete a statement of affairs. The respondent also sought the production of financial records via subpoena and the suspension of an Airport Watch List order.

The court was required to determine several legal issues, including the validity of objections to a subpoena seeking financial records, the appropriate course of action regarding the applicant's bankruptcy and failure to provide financial information, and the merits of applications concerning parenting orders and property settlement. The court also considered an application for recusal.

The court applied principles relating to the discovery of financial documents in bankruptcy proceedings and family law property disputes, as well as the rules governing the issuance and objection to subpoenas. The court also considered the impact of the applicant's bankruptcy on the property settlement proceedings. The recusal application was heard separately.

The court made several orders, including the dismissal of an application filed on 18 April 2019. It directed the applicant to file and serve an amended initiating application for further parenting orders by 31 May 2019, and the respondent to file and serve an amended response by 21 June 2019. Various applications, including an application filed on 6 March 2019, a response filed on 17 April 2019, a contravention application, and objections to a subpoena, were listed for an interim hearing on 1 July 2019. Parties were restricted from filing further affidavits without leave of the court in relation to these applications.

Orders

Orders of the court

The Application in a Case filed on 18 April 2019, be dismissed.

By 4.00pm on Friday, 31 May 2019 the applicant file and serve any Amended Initiating Application seeking relief for the further parenting orders as set out in his Response filed on 17 April 2019.

By 4.00pm on Friday, 21 June 2019 the respondent file and serve any Amended Response to the Amended Initiating Application.

The following applications are listed for Interim Hearing on 1 July 2019:

(a) the Application in a Case filed on 6 March 2019;

(b) the Response to the Application in a Case filed on 17 April 2019;

(d) the Notices of Objection to the subpoena addressed to the Directors of ….

Save with leave of the Court no party may file or serve any further affidavits in relation to the applications addressed in paragraph (4) of this Order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

MERRELL & MERRELL [2019] FCCA 1184

Most Recent Citation

MERRELL & MERRELL (No.2) [2019] FCCA 1846

Cases citing this decision · 2 of 2 shown

DISHMAN & DISHMAN
[2019] FCCA 2786 Para 17

…00] HCA 48; (2000) 201 CLR 488 . The relevant principles are clearly articulated and eruditely so by Judge Kelly in the decision of Merrell & Merrell [2019] FCCA 1184, commencing at paragraph 69 and continuing until paragraph 74. I incorporate that portion of the judgment herein [footnotes omitted]. Recusal 69. Mr…
MERRELL & MERRELL (No.2)
[2019] FCCA 1846 Para 4

…These reasons for judgment should be read in conjunction with reasons that were published on 8 May 2019: see Merrell & Merrell [2019] FCCA 1184. Although the issues were addressed in a slightly different order, it is convenient to consider them in the manner dealt with below.…

View all 2 citing cases →

Cases cited in this decision · 14 of 14 shown

Sadasivam & Seshan
[2019] FamCAFC 76 Para 6

…equal shared parental responsibility upon the parties, the applicant is entitled to be consulted in relation to the orders sought: Sadasivam & Seshan [2019] FamCAFC 76, [22], [33].…
Ugur v Attorney General for New South Wales
[2019] NSWCA 86 Para 9

…ld not be decided with an impartial and unprejudiced mind; (5) a judge should not lightly recuse him or herself. White JA stated as follows:[5] [4] [2019] NSWCA 86. [5] [2019] NSWCA 86, [93]-[98]. The test as to whether a judge is disqualified by reason of appearance of bias, including bias by pre-judgment, is whe…
Luck v Secretary, Department of Human Services
[2017] FCA 540 Para 6

…kruptcy.[2] [2](2000) 205 CLR 337, [6], [33]; see also Johnson v Johnson (2000) 201 CLR 488, [11]; Luck v Secretary, Department of Human Services [2017] FCA 540, (Kerr J).…
Galea v Galea
[2015] NSWCCA 215 Para 9

…d mind. [10]Citing GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser HealthCare (UK) Ltd [2013] F CAFC 150, [39]- [40]. [11] Citing Galea v Galea (1990) 19 NSWLR 263 at 282. [12] Citing Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, 422. [15] Citing R v S (RD) [1997] 3 SCR 484, 505. [16] Citing Re JRL; Ex parte CJL…
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser HealthCare (UK) Limited
[2013] FCAFC 150 Para 10

…ar & Bench: Some reflections on case management and judicial bias: [2014] NSWJShol 20, citing GlaxoSmithKline v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150; Johnson v Johnson (2000) 201 CLR 488; Vakauta v Kelly (1989) 167 CLR 568; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.…
Barakat v Goritsas (No 2)
[2012] NSWCA 36 Para 9

…olls (2011) 244 CLR 427; [2011] HCA 48, [31]. [7] Citing Michael Wilson & Partners Limited v Nicholls , [63]. [8] Citing Barakat v Goritsas (No. 2) [2012] NSWCA 36, [13]. In Re JRL; Ex parte CJL, [9] Mason J said: [9] [1986] HCA 39; (1986) 161 CLR 342, 352. It needs to be said loudly and clearly that the ground of…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 9

…1]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48, [31]. [7] Citing Michael Wilson & Partners Limited v Nicholls , [63]. [8] Citing Barakat v Goritsas (No. 2) [2012] NSWCA 36, [13]. In Re JRL; Ex parte…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 9

…More recently, in Ugur v Attorney-General for New South Wales ,[4] White JA with whom Meagher and Brereton JJA agreed, examined a number of important principles which I have set out below. By way of overview, the NSW Court of Appeal reiterated that the ground of disqualification is a reasonable appr…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 6

…ht not bring an impartial mind to the resolution of the question the judge is required to decide ”: Ebner v Official Trustee in Bankruptcy.[2] [2](2000) 205 CLR 337, [6], [33]; see also Johnson v Johnson (2000) 201 CLR 488, [11]; Luck v Secretary, Department of Human Services [2017] FCA 540, (Kerr J).…
Johnson v Johnson
[2000] HCA 48 Para 6

…solution of the question the judge is required to decide ”: Ebner v Official Trustee in Bankruptcy.[2] [2](2000) 205 CLR 337, [6], [33]; see also Johnson v Johnson (2000) 201 CLR 488, [11]; Luck v Secretary, Department of Human Services [2017] FCA 540, (Kerr J).…
Vakauta v Kelly
[1989] HCA 44 Para 5

…Mr Duffy of counsel correctly drew attention to the principles stated in Vakauta v Kelly [1] respecting apprehended bias. [1] (1989) 167 CLR 568.…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 9

…n & Partners Limited v Nicholls , [63]. [8] Citing Barakat v Goritsas (No. 2) [2012] NSWCA 36, [13]. In Re JRL; Ex parte CJL, [9] Mason J said: [9] [1986] HCA 39; (1986) 161 CLR 342, 352. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial off…
[1997] 3 SCR 484
[1997] 3 SCR 484 Para 9

…Citing Galea v Galea (1990) 19 NSWLR 263 at 282. [12] Citing Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, 422. [15] Citing R v S (RD) [1997] 3 SCR 484, 505. [16] Citing Re JRL; Ex parte CJL.…
3 SCR 484
3 SCR 484 Para 8

…ary, Department of Human Services ,[3] Kerr J stated: [3] [2017] FCA 540, [91]. As was noted by L’Heureux-Dube and McLachlin JJ in R v S (RD) [1997]3 SCR 484 at [119]: ...the duty to be impartial ‘does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attit…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
67Z, 69ZN, 70NBA, 79 5 mentions
Bankruptcy Act 1966 (Cth)
178, 54 2 mentions