Merrill and Burt - [2016] FamCA 647

FAMILY COURT OF AUSTRALIA

MERRILL & BURT

[2016] FamCA 647

FAMILY LAW – DISCOVERY – where the respondent seek disclosure – where it is the applicant’s position that she has complied with her obligation to make full and frank disclosure – where consideration is given to the “directly relevant” test – where the respondent’s application is dismissed.

Federal Court Rules 2011 (Cth) pt 20
Family Law Rules 2004 (Cth) ch 13, 15

Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063
Briese & Briese (1986) FLC 91-713
Denis v Chambers Investment Planners Pty Ltd [2012] FCA 63
Hatton & Attorney-General of the Commonwealth of Australia (2000) FLC 93-038
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Martin & Martin and Anor (No 2) [2014] FamCA 232
Re McGorm; Ex parte Co-operative Building Society of South Australia (1989) 86 ALR 275
Woley & Humboldt (No 3) [2009] FamCA 546

APPLICANT:

Ms Merrill

RESPONDENT:

Mr Burt

FILE NUMBER:

MLC

9912

2013

DATE DELIVERED:

11 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

1 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr Walmsley QC

SOLICITOR FOR THE RESPONDENT:

Effron & Associates

Orders

That the Application in a Case filed 31 May 2016 is dismissed.
That the question of costs of each of the parties is reserved.
That the hearing of the interim application is a matter fit for counsel including senior counsel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLC 9912 of 2013

Ms Merrill

Applicant

And

Mr Burt

Respondent

REASONS FOR JUDGMENT

introduction

By Further Amended Initiating Application filed 19 February 2016, Ms Merrill (“the applicant”) seeks carefully crafted orders that if made would result in the respondent having no further claim or entitlement in respect of the following:-
1.C Pty Ltd (ACN …) (“C”).
2.L Street, Suburb E (“the former family home”).
3.1 M Street, Suburb D.
4.2 and 3 M Street, Suburb D.
5.N Street, Suburb D.
6.Car parks situate at 4 M Street, Suburb D registered in the name of C.
7.Any funds received in respect of the VCAT proceedings no. ...
By Amended Response to Initiating Application filed 31 May 2016, Mr Burt (“the respondent”) seeks orders by way of settlement of property that the applicant transfer her interest in the former…

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 Merrill and Burt

Details

AGLC: Merrill and Burt [2016] FamCA 647
Case: [2016] FamCA 647
Decision Date: 11 August 2016

CaseChat Overview and Summary

Merrill (Applicant) sought an order against Burt (Respondent) in the Supreme Court of Victoria. The nature of the dispute is not detailed in the provided text, beyond the fact that an "Application in a Case" was filed by the Applicant.

The central legal issue before Berman J was whether to grant the Applicant's interlocutory application. The court was also required to consider the appropriate costs order and whether the hearing of the interim application warranted the engagement of senior counsel.

Berman J dismissed the Applicant's application. While the specific reasons for dismissal are not provided, the court's decision to reserve the question of costs indicates that the outcome was not a clear win for either party on that front. The court did, however, deem the hearing of the interim application to be a matter of sufficient complexity or importance to justify the involvement of senior counsel.

Orders

Orders of the court

That the Application in a Case filed 31 May 2016 is dismissed.

That the question of costs of each of the parties is reserved.

That the hearing of the interim application is a matter fit for counsel including senior counsel.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.