FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Minke & Minke [2024] FedCFamC1F 130
File number(s): SYC 9122 of 2022 Judgment of: WILSON J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – PROPERTY – husband’s application to appoint an adversarial witness – application dismissed. Legislation: Family Law Act 1975 s 79(4)(a)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ss 7.08(2)(a), 7.08(2)(b), 7.08(2)(c)
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Honeysett v The Queen (2014) 253 CLR 122
Jabour v Jabour (2019) 59 Fam LR 475
Lang v The Queen [2023] HCA 29
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Toma & Doyle [2022] FedCFamC1F 215
Verdon v Verdon (2020) 62 FamLR 573
Woodcock & Woodcock (No. 5) [2023] FedCFamC1F 894
Division: Division 1 First Instance Number of paragraphs: 17 Date of last submission/s: 28 February 2024 Date of hearing: 5 March 2024 Place: Melbourne Counsel for the Applicant: Mr Richardson SC Solicitors for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Todd Solicitors for the Respondent: Walter & Elliott Family Lawyers ORDERS
SYC 9122 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MINKE
Applicant
AND: MR MINKE
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT –
1.The husband’s application in a proceeding filed 28 February 2024 is dismissed.
2.The costs of an incidental to the husband’s application are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Minke & Minke has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
Many months ago I fixed this proceeding for trial in the Major Complex Financial Proceedings List ("MCFPL") commencing on Monday 18 March 2024, just under a fortnight away.
On Monday 4 March, the husband's application in a proceeding filed 28 February 2024 was heard before me. Consistent with the philosophy of case management for cases in the MCFPL requiring urgent applications to be dealt with urgently, I heard the husband's application promptly particularly in circumstances in which the fate of his application may bear upon the trial date.
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- Case
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CaseChat Overview and Summary
The primary legal issue before the court was whether the husband had the right to appoint an adversarial witness under the Family Law Act 1975. The court examined the legislative framework and the established case law on the admissibility of adversarial witnesses. It also considered whether the proposed witness was impartial and whether their testimony would be of benefit to the administration of justice. The court further evaluated whether the proposed witness had any relevant and admissible evidence that could assist in resolving the property dispute.
The court found that the husband's application did not meet the criteria for appointing an adversarial witness as per the provisions of the Family Law Act. The proposed witness did not demonstrate impartiality, and their testimony was unlikely to provide the unbiased evidence required by the court. Additionally, the court determined that the proposed witness did not possess information that was necessary or relevant to the resolution of the property dispute. Consequently, the court dismissed the husband's application, noting that the costs associated with the application would be reserved for a later determination. The court's decision underscored the importance of impartiality and relevance in the admissibility of witnesses in family law proceedings.
Orders
Orders of the court
SYC 9122 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS MINKE
Applicant
AND:
MR MINKE
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT –
1. The husband’s application in a proceeding filed 28 February 2024 is dismissed.
2. The costs of an incidental to the husband’s application are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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