Morris & Morris (No 2)

Case [2023] FedCFamC1F 835


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Morris & Morris (No 2) [2023] FedCFamC1F 835

File number: SYC 4955 of 2021
Judgment of: CAMPTON J
Date of judgment: 26 September 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife has made an Application for orders for the husband to provide information contended to be relevant to an issue in the proceeding – Where the husband contends the information is irrelevant and the request is in reality an improper interrogatory – Where the wife seeks leave to issue subpoena in New Zealand – Where it is ordered that the husband is to supply the relevant information – Where the wife is granted leave to issue subpoena in New Zealand
Legislation:

Evidence Act 1995 (NSW) s 55

Family Law Act 1975 (Cth) ss 79, 106B

Trans-Tasman Proceedings Act 2010 (Cth) s 31

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.14, 2.48, 6.16

Division: Division 1 First Instance
Number of paragraphs: 21
Date of hearing: 26 September 2023
Place: Sydney
Counsel for the Applicant: Mr Roberts
Solicitor for the Applicant: Barkus Dooling Winning
Counsel for the Respondents: Mr Smallbone
Solicitor for the Respondents: Prime Lawyers MW

ORDERS

SYC 4955 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MORRIS

Applicant

AND:

MR MORRIS

First Respondent

D2 LIMITED

Second Respondent

F LIMITED ATF THE D TRUST (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:

1.Absent objection, the husband have liberty to adduce and rely on affidavits of himself and Mr W in the form as served on the solicitors for the wife on 25 September 2023 for the purposes of the trial listed to commence 30 October 2023 and such affidavits to be filed and served on or before 29 September 2023.

2.Not later than 10am on the first day of the trial, being 30 October 2023 counsel for the parties are to confer and are to prepare a trial plan. In this regard it is the husband’s contention that it may be necessary to allocate a further 3 days to the trial.

3.On or before 3 October 2023, the husband provide to the wife’s solicitors the name and contact details of any accountant, accounting firm, lawyer, law firm or barrister in Australia, or New Zealand or elsewhere who provided advice as to the transfer of 48 million shares held by the husband personally in B Limited in late 2021 to D2 Limited, the second respondent in the proceedings up to the date of the said transfer.

4.The pursuant to rr 1.14 and 2.48 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and s 31(1) of the Trans-Tasman Proceedings Act 2010, the wife is granted leave to issue and serve in New Zealand subpoena for the production of documents as to:

(a)The provision of advice in…

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Morris & Morris (No 2) [2023] FedCFamC1F 835
Case
[2023] FedCFamC1F 835
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia dealt with a family law case between Ms Morris, the applicant, and Mr Morris, the first respondent, along with two other respondents. The primary issue before the court was Ms Morris's application for the husband to disclose information regarding a significant share transfer. Ms Morris argued that this information was pertinent to the ongoing proceedings, while Mr Morris claimed it was irrelevant and amounted to an improper interrogatory. Additionally, Ms Morris sought permission to issue a subpoena in New Zealand. The court had to determine whether the requested information was relevant and if the subpoena should be issued abroad.

The court found that the information sought by Ms Morris was relevant to the proceedings and ordered Mr Morris to provide the names and contact details of any professional advisors involved in the share transfer. The court also considered the application to issue a subpoena in New Zealand, concluding that it was appropriate under the Trans-Tasman Proceedings Act 2010 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court granted Ms Morris leave to issue the subpoena but stipulated that it must be served within ten days of receiving the information from Mr Morris. In the event of objections to document inspection, the court directed that they be notified promptly and listed for expeditious resolution.

In summary, the court ruled that Mr Morris must disclose the requested information and allowed Ms Morris to issue a subpoena in New Zealand, subject to specific conditions. The court also made orders regarding the use of affidavits at trial, the preparation of a trial plan, and restrictions on the publication of the court's reasons for judgment. The orders reflect a careful balance between the procedural rights of the parties and the need to maintain the confidentiality of family law proceedings.

Orders

Orders of the court

SYC 4955 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MORRIS

Applicant

AND:

MR MORRIS

First Respondent

D2 LIMITED

Second Respondent

F LIMITED ATF THE D TRUST (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

26 SEPTEMBER 2023

THE COURT ORDERS THAT:

1. Absent objection, the husband have liberty to adduce and rely on affidavits of himself and Mr W in the form as served on the solicitors for the wife on 25 September 2023 for the purposes of the trial listed to commence 30 October 2023 and such affidavits to be filed and served on or before 29 September 2023.

2. Not later than 10am on the first day of the trial, being 30 October 2023 counsel for the parties are to confer and are to prepare a trial plan. In this regard it is the husband’s contention that it may be necessary to allocate a further 3 days to the trial.

3. On or before 3 October 2023, the husband provide to the wife’s solicitors the name and contact details of any accountant, accounting firm, lawyer, law firm or barrister in Australia, or New Zealand or elsewhere who provided advice as to the transfer of 48 million shares held by the husband personally in B Limited in late 2021 to D2 Limited, the second respondent in the proceedings up to the date of the said transfer.

4. The pursuant to rr 1.14 and 2.48 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and s 31(1) of the Trans-Tasman Proceedings Act 2010, the wife is granted leave to issue and serve in New Zealand subpoena for the production of documents as to:

(a) The provision of advice in respect of the transfer identified in Order 3; and

(b) To such persons or entities as disclosed by the husband pursuant to the said order.

5. Pursuant to s 31(4)(a) of the Trans-Tasman Proceedings Act 2010, the subpoena must not be served in New Zealand after ten days after the date upon which the information is provided in compliance with the above order.

6. In the event an objection is filed by the husband or the second through to fourth respondents in respect of the inspection of any documents produced pursuant to the said subpoena, the solicitor for the husband and/or the second through to fourth respondents are to, as soon as reasonably practicable, notify my chambers of the filing of such objection by way of email copied to the wife, in the anticipation of the said objection being expeditiously listed on 48 hours’ notice before a judge other than myself to determine the said objection.

7. These orders and reasons for judgment are not to be published except as follows:

(a) To any lawyer or any other person for the dominant purpose of a party being provided with professional legal services relating to these proceedings.

(b) Consistent with the requirements of s 121 of the Family Law Act 1975 (Cth) any other person to whom both parties consent in writing.

8. No person, other than the parties and their solicitors shall be permitted to search the court file in this matter without first obtaining leave of the Court.

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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