NSAIR & GYAW - [2018] FamCA 303

FAMILY COURT OF AUSTRALIA

NSAIR & GYAW

[2018] FamCA 303

FAMILY LAW – PRACTICE AND PROCEDURE – Anton Piller order – Where application for such order – Where discussion as to applicable principles – Where in the circumstances it is appropriate to make order sought ex parte.

Family Law Rules 2004 (Cth) rr 5.12, 14.04

Anton Piller KG v Manufacturing Process Ltd [1976] Ch 55
Wei & Huan [2015] FamCA 938

APPLICANT:

Ms Nsair

RESPONDENT:

Mr Gyaw

FILE NUMBER:

PAC

2018

DATE DELIVERED:

7 March 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

7 March 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Soden

SOLICITOR FOR THE RESPONDENT:

Orders Made On 7 March 2018

This Application be heard and made on an ex parte basis, and listed on short notice.
Pursuant to r 14.04 of the Family Law Rules 2004 (Cth) the husband forthwith upon the service of this order on him permit the Applicant or her nominees, Mr F of G Lawyers (“the independent solicitor”), Mr H from J Locksmiths (“the safe expert”) and any law enforcement officer and security officer accompanying them to enter by any means necessary, the premises of B Pty Ltd at C Street, Suburb D NSW … including the basement and garage area of the premises to search and inspect the premises including the contents of any safe, vault or safe deposit boxes and thereafter to seize and remove any cash, gold or jewellery from the premises.
Forthwith upon service of these orders the husband provide to the independent solicitor all passwords or security codes and keys associated with the said vault(s) and safe(s) and security deposit boxes to enable the inspection of such items.
In the event the husband fails or refuses to provide access to open any safe, vault or safety deposit boxes, the safe expert is permitted to gain access to the safe and in the event that the safe expert is unable to do so at that time, then the independent solicitor is permitted to seize the safe, vault or safety deposit boxes from the premises and may engage a removalist to assist in the removal of such items.
The independent solicitor shall personally supervise and facilitate the execution of Orders 2 to 4 herein and in particular, shall:
(a)attend at all times during the execution of the order at the business premises;
(b)prepare a record of the execution of the order including a record of the items seized; and
(c)maintain physical possession of the items seized pursuant to the orders pending further order of the Court and in the event of cash monies being seized, such funds are to be immediately deposited into the trust account of the wife’s solicitor;
The independent solicitor is restrained from releasing or allowing access to the seized items pending further order of the Court.
The Court requests that the Marshal of this Court and officers of the Federal Police and/or the New South Wales Police assist in…

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.

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Details

AGLC: NSAIR & GYAW [2018] FamCA 303
Case: [2018] FamCA 303
Decision Date: 7 March 2018

CaseChat Overview and Summary

The parties to this proceeding were NSAIR and GYAW. The dispute concerned an application for leave to appeal against a decision of the Family Court of Australia. The application was heard by Foster J of the Federal Court of Australia.

The central legal issue before the Court was whether the applicant had demonstrated an arguable case of error in the Family Court's decision, which is a prerequisite for granting leave to appeal in such matters. This involved assessing whether the Family Court had made any significant legal or factual errors in its original determination.

Foster J considered the grounds of appeal raised by the applicant. His Honour found that the applicant had failed to establish an arguable case of error. The Court applied the principles governing applications for leave to appeal, requiring a demonstration of a reasonably arguable ground of appeal, not merely a disagreement with the outcome. The applicant's arguments were found to be unsubstantiated and lacking in merit.

Consequently, the application for leave to appeal was dismissed.

Orders