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Mitford and Mitford & Ors

Mitford and Mitford & Ors

Case [2018] FamCA 1067 14 December 2018

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FAMILY COURT OF AUSTRALIA

MITFORD & MITFORD AND ORS

[2018] FamCA 1067

FAMILY LAW – PROPERTY – Interim – Discovery and production of documents – Trusts – Orders for production of documents listed in husband’s List of Documents.

FAMILY LAW – PROPERTY – Interim – Whether the wife has a right of occupation at the matrimonial home pending final property settlement – Where the wife seeks to retain the matrimonial home as part of any settlement – Where the husband and the Trust are concerned about interference with ongoing farming operations and the presence of house guests during the wife’s absences from the property.

Family Law Act 1975 (Cth) s 114
Family Law Rules 2004 (Cth) ch 13, rr 12.02, 13.01, 13.04 13.07
Federal Court Rules 2011 (Cth) rr 20.14, 20.15

Ascot Investments Pty Ltd v Harper (1981) FLC 91-000
Briese & Briese (1986) FLC 91-713
Coventry, Coventry & Smith [2004] FamCA 249
Davidson& Davidson (1991) FLC 92-197
Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63
Goodwin v Goodwin Alpe (1991) FLC 92-192
Harris & Dewell & Anor (2018) FLC 93-839
Kelly & Kelly (No 2) (1981) FLC 91-108
Martin & Martin & Anor (No 2) [2014] FamCA 232
Masoud & Masoud [2016] FamCAFC 24
Stein & Stein (1986) FLC 91-779
Stowe & Stowe (1981) FLC 91-027
Woley & Humboldt (No 3) [2009] FamCA 546

APPLICANT:

Ms Mitford

1st RESPONDENT:

Mr Mitford

2nd RESPONDENT:

B Pty Ltd

3rd RESPONDENT:

C Pty Ltd

FILE NUMBER:

ADC

2017

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

27 November 2018 and 7 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wells QC with Ms Lewis

SOLICITOR FOR THE APPLICANT:

Scales & Partners

COUNSEL FOR THE 1ST RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE 1ST RESPONDENT:

Mellor Olsson

COUNSEL FOR THE 2ND RESPONDENT:

Mr McGinn

SOLICITOR FOR THE 2ND RESPONDENT:

Welden & Coluccio Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr McGinn

SOLICITOR FOR THE 3RD RESPONDENT:

Welden & Coluccio Lawyers

Orders

That the wife shall have the right of occupation at the premises situate at D Street, E Town, Victoria … (“the B Homestead”).
That the wife be restrained and an injunction granted restraining her from:-
(a)Interfering with any assets owned by B Pty Ltd and the day to day farming operations of B Pty Ltd;
(b)Engaging with farming staff employed or contracted by B Pty Ltd;
(c)Entering areas of the farm situate at E Town, Victoria other than the B Homestead and its curtilage;
(d)Authorising, suffering or permitting:-
(i)Any other person to reside or remain at the B Homestead should the wife’s absence from the homestead extend beyond 72 hours;
(ii)Any other person to be in possession of or consume any illicit drugs whilst residing at or remaining on the B Homestead.
That the wife grant access to any employee of B Pty Ltd and personnel (including but not limited to the director of B Pty Ltd and…

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 Mitford and Mitford & Ors

Details

AGLC: Mitford and Mitford & Ors [2018] FamCA 1067
Case: [2018] FamCA 1067
Decision Date: 14 December 2018

CaseChat Overview and Summary

In the matter of Mitford and Mitford & Ors, Berman J considered applications by the wife for interim orders concerning property settlement and discovery of documents. The dispute involved the wife's right of occupation at the matrimonial home, known as the B Homestead, pending final property settlement, and the husband's and a related trust's concerns about potential interference with farming operations and the presence of guests. The wife sought to retain the matrimonial home as part of the settlement.

The court was required to determine whether the wife should have a right of occupation at the B Homestead and, if so, what conditions should be imposed on that occupation. Additionally, the court had to consider the extent of discovery of documents to be provided by the husband, specifically relating to his List of Documents and financial information concerning the Mitford Family Trust.

Berman J granted the wife the right of occupation at the B Homestead but imposed significant restrictions to address the husband's concerns. These restrictions included restraining the wife from interfering with the farming operations of B Pty Ltd, engaging with farming staff, or entering areas of the farm outside the homestead and its curtilage. The wife was also prohibited from allowing other persons to reside at the homestead for more than 72 hours in her absence or permitting illicit drug use on the property. The wife was ordered to grant access to the property to employees of B Pty Ltd and personnel, including the husband, upon reasonable notice. Furthermore, the husband was ordered to produce specific documents from his List of Documents, along with financial statements for the Mitford Family Trust for the years ending 30 June 2015, 2016, and 2017, and any independent valuation report for the trust's property.

Orders

Orders of the court

That the wife shall have the right of occupation at the premises situate at D Street, E Town, Victoria … (“the B Homestead”).

That the wife be restrained and an injunction granted restraining her from:-

(a) Interfering with any assets owned by B Pty Ltd and the day to day farming operations of B Pty Ltd;

(b) Engaging with farming staff employed or contracted by B Pty Ltd;

(d) Authorising, suffering or permitting:-

(i) Any other person to reside or remain at the B Homestead should the wife’s absence from the homestead extend beyond 72 hours;

(ii) Any other person to be in possession of or consume any illicit drugs whilst residing at or remaining on the B Homestead.

That the wife grant access to any employee of B Pty Ltd and personnel (including but not limited to the director of B Pty Ltd and the respondent husband) on 24 hours written notice, or without notice in the case of an emergency.

That the husband produce the following documents for inspection by the wife (and if copies are sought then at her cost):-

(a) The documents set out in Items 1, 2, 3, 4 and 6 of Schedule 2 of the husband’s List of Documents filed 6 December 2018.

(b) The financial statements for the Mitford Family Trust for the years ending 30 June 2015, 2016 and 2017.

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.

Citations

AGLC Citation

Mitford and Mitford & Ors [2018] FamCA 1067

Most Recent Citation

Nagel & Clay [2020] FamCA 326

Cases citing this decision · 1 of 1 shown

Nagel & Clay
[2020] FamCA 326 Para 13

…ruling on relevance in Britt . I decided I was unable to do so in the circumstances of that case. The Full Court in Mitford & Mitford and Ors [2018] FamCA 1067 at [43] commented on how evolution of the issues in a case bears upon an assessment of the relevance of documentary evidence as follows: At an early stage in…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

Masoud & Masoud
[2016] FamCAFC 24 Para 23

…In Masoud & Masoud [2016] FamCAFC 24 at [20], the Full Court considered the meaning of possession and control as follows:- The meaning of “possession and control” has been considered extensively. For a document to be within the power of a party, the party must be in actual possession of it or must have an immediate…
Martin & Martin and Anor (No. 2)
[2014] FamCA 232 Para 8

…In Martin & Martin & Anor (No 2) [2014] FamCA 232, Cronin J found at [28] that: “the focus of the Court should be whether it was “on the cards” that the documents would materially assist.” His Honour considered his own comments in Woley & Humboldt (No 3) [2009] FamCA 546 where he said at [39]:- In Hudson Timber & H…
Schweitzer & Schweitzer
[2012] FamCA 445 Para 23

…on from the person who has physical possession of it: see Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627. In Schweitzer & Schweitzer [2012] FamCA 445, O’Reilly J held at [45] that “possession” as contemplated by r 13.07 “means not mere physical possession (custody) but “possession” within the accepted…
Dennis v Chambers Investment Planners Pty Ltd
[2012] FCA 63 Para 15

…The focus is therefore to prevent unnecessary discovery: see Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63.…
Woley & Humboldt (No 3)
[2009] FamCA 546 Para 8

…whether it was “on the cards” that the documents would materially assist.” His Honour considered his own comments in Woley & Humboldt (No 3) [2009] FamCA 546 where he said at [39]:- In Hudson Timber & Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of ap…
Coventry & Coventry & Smith
[2004] FamCA 249 Para 9

…The wife supports her application for discovery by reference to the authorities of Coventry, Coventry & Smith [2004] FamCA 249, Ashton & Ashton (1986) FLC 91-777; [1986] FamCA 20 and Davidson & Davidson (1991) FLC 92-197. Those cases are concerned with the extent to which a party could be considered to control a tr…
Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd
[2002] FCA 832 Para 8

…is own comments in Woley & Humboldt (No 3) [2009] FamCA 546 where he said at [39]:- In Hudson Timber & Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on su…
Ascot Investments Pty Ltd v Harper
[1981] HCA 44 Para 10

…there will be other potential beneficiaries. The limits on the power of the Court to deal with third party interests were discussed by Gibbs J in Ascot Investments Pty Ltd v Harper (1981) FLC 91-000 at 76,061:- It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either…
[1986] FAMCA 20
[1986] FAMCA 20 Para 9

…orts her application for discovery by reference to the authorities of Coventry, Coventry & Smith [2004] FamCA 249, Ashton & Ashton (1986) FLC 91-777; [1986] FamCA 20 and Davidson & Davidson (1991) FLC 92-197. Those cases are concerned with the extent to which a party could be considered to control a trust even tho…
[1980] 1 WLR 627
[1980] 1 WLR 627 Para 23

…t at the time of discovery to demand possession from the person who has physical possession of it: see Lonrho Ltd v Shell Petroleum Co Ltd (No 1) [1980] 1 WLR 627. In Schweitzer & Schweitzer [2012] FamCA 445, O’Reilly J held at [45] that “possession” as contemplated by r 13.07 “means not mere physical possession (c…

Legislation cited in this decision · 5

Federal Court Rules 2011 (Cth)
20.14, 20.15 3 mentions (from Para 12)
Family Law Act 1975 (Cth)
114 2 mentions (from Para 18)
Family Law Rules 2004 (Cth)
1 mention (from Para 4)
Trustee Act 1936 (SA)
1 mention (from Para 27)
Trustee Regulations 2011 (SA)
1 mention (from Para 27)