Papadopoulos & Papadopoulos (No. 2)

Case [2007] FamCA 1683

FAMILY COURT OF AUSTRALIA

PAPADOPOULOS & PAPADOPOULOS (NO. 2) [2007] FamCA 1683

FAMILY LAW – PRACTICE AND PROCEDURE – SUBPOENA – Objection by a party but not recipient of subpoena – Objection by beneficiaries of a trust who are not parties to proceedings 

FAMILY LAW – PRACTICE AND PROCEDURE – DISCOVERY – Rule 13.04 of the Family Law Rules 2004 – Mandatory nature of discovery and disclosure – Husband director of trustee company and appointor of trust but not beneficiary – Obligation to comply with Rule 13.04
Family Law Act 1975 (Cth)

A & A and Ors [2005] FamCA 561
Ansett Industries Ltd v Commonwealth SC (Vic), Marks J No 268/87 3 April 1987 (unreported)
Boardman v Phipps [1967] 2AC 46
Briese (1985) 10 Fam LR 642
Hatton v Attorney-General of Commonwealth of Australia and Ors (2000) FLC 93-038
Keviris Pty Ltd v Capital Building Society (SC) (Vic) No 6566/86 9 February 1988 (unreported per Kaye J)
Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors [2002] VSC 270 (4 July 2002 unreported)
O’Sullivan v Herdmans Ltd [1987] 3 All ER 129
Wellesley v Lord Mornington [1855] 2K. and J. 143

APPLICANT: Ms Papadopoulos
RESPONDENT: Mr Papadopoulos
INTERVENOR:
FILE NUMBER: MLF 11340 of 1995
DATE DELIVERED: 23 March 2007
PLACE DELIVERED: Melbourne
JUDGMENT OF: Justice Cronin
HEARING DATE: 16 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Shannessy
SOLICITOR FOR THE APPLICANT: Philippa Power Solicitor
COUNSEL FOR THE RESPONDENT: Mr St John SC
SOLICITOR FOR THE RESPONDENT: T J Mulvany & Co

COUNSEL FOR THE PAPADOPOULOS

FAMILY TRUST:

 Ms Colla

Orders

  1. That the further hearing of the applications in a case (Form 2 and the amended Form 2) both filed 8 February 2007 be adjourned to a date to be fixed before the Honourable Justice Cronin.

  2. That forthwith, the material produced under subpoenae but filed 13 December 2006 by National Australia Bank, L Financial Services and O Financial Services be released for inspection and copying by all parties.

  3. That the exhibits be returned to the respective parties.

IT IS NOTED that publication of this judgment under the pseudonym Papadopoulos & Papadopoulos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 11340  of 1995

MS PAPADOPOULOS  

Applicant

And

MR PAPADOPOULOS  

Respondent

REASONS FOR JUDGMENT

  1. These are my reasons for judgment in an interim hearing.

  2. The unusual nature of this dispute relates to the obligations to comply with the disclosure provisions of the Family Law Rules which are quite explicit.

  3. The factual matrix in this case is also most unusual and complicates the outcome.

  4. I am dealing with two applications brought by Form 2 documents but also objections by the husband and his children from an earlier marriage to the release of financial material relating to a trust and corporate trustee.  The children referred to, are the beneficiaries of the trust.

  5. The applicant wife is 58 years of age and the husband 66 years. The…

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Details
AGLC
Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683
Case
[2007] FamCA 1683
Decision Date

CaseChat Overview and Summary

In the matter of *Papadopoulos & Papadopoulos (No. 2)*, Justice Cronin of the Family Court of Australia considered objections raised by beneficiaries of a trust who were not parties to the proceedings, concerning subpoenas issued to third parties. The dispute centred on the disclosure of documents relevant to financial proceedings between the parties to the marriage.

The primary legal issues before the Court were whether the non-party beneficiaries had standing to object to the subpoenas, and if so, on what grounds. Additionally, the Court was required to determine the extent of the husband's obligations under Rule 13.04 of the *Family Law Rules 2004* concerning discovery and disclosure, particularly given his role as director of the trustee company and appointor of the trust, despite not being a beneficiary himself.

Justice Cronin reasoned that while non-parties generally do not have standing to object to subpoenas, the beneficiaries' interests in the trust, which were directly implicated by the proceedings, warranted their participation in the objection process. The Court affirmed the mandatory nature of discovery and disclosure obligations under Rule 13.04, finding that the husband, by virtue of his control and influence over the trust as director and appointor, had a duty to comply with these rules, even if he was not a direct beneficiary.

The Court ordered that the further hearing of the applications be adjourned. It further directed that material produced under subpoena by National Australia Bank, L Financial Services, and O Financial Services, which had been filed on 13 December 2006, be released for inspection and copying by all parties. The exhibits were to be returned to their respective parties.

Orders

Orders of the court

1.

That the further hearing of the applications in a case (Form 2 and the amended Form 2) both filed 8 February 2007 be adjourned to a date to be fixed before the Honourable Justice Cronin.

2.

That forthwith, the material produced under subpoenae but filed 13 December 2006 by National Australia Bank, L Financial Services and O Financial Services be released for inspection and copying by all parties.

3.

That the exhibits be returned to the respective parties.

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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