Rennie and Rennie - [2017] FamCA 329

FAMILY COURT OF AUSTRALIA

RENNIE & RENNIE

[2017] FamCA 329

FAMILY LAW – PROPERTY – Where final judgment is reserved – Where an application is made to re-open property proceedings – Whether the interests of justice will be better served by granting leave to re-open the case – Where leave to re-open is granted for the purpose of admitting a limited amount of evidence.

Family Law Act 1975 (Cth)

EB v CT (No. 2) [2008] QSC 306
Smith v NSW Bar Association (1992) 176 CLR 256
Summitt & Summit and Ors (Re-opening) [2009] FamCA 365

APPLICANT:

Mr Rennie

RESPONDENT:

Ms Rennie

FILE NUMBER:

BRC

1329

2014

DATE DELIVERED:

19 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bunning

SOLICITOR FOR THE APPLICANT:

McInnes Wilson

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim

Orders

IT IS ORDERED

That leave is granted for the Husband to re-open his case in property adjustment proceedings BRC1329 of 2014, where the trial was concluded on 3 February 2017.
That, further, leave is granted for the Husband to read in those re-opened proceedings and to rely upon only the following further evidence contained in his affidavit filed 7 April 2017:
(i)Paragraphs 6 – 22 and annexures MSR-02 and MSR-03;
(ii)Paragraphs 23 – 28 and annexure MSR-05;
(iii)Paragraphs 29 – 34 and annexures MSR-06 and MSR-07;
(iv)Paragraphs 75 – 78.
That the Wife’s solicitors inform the Court, through the Judge’s Associate, and also inform the Husband’s solicitors by close of business on Friday, 26 May 2017, if the wife intends to cross-examine the husband and/or the psychiatrist who is the author of the report marked annexure MSR-03 in respect of the further evidence relied upon by the Husband in the re-opened proceedings, whereupon the matter will be listed for further directions to be made so as to facilitate that.
That in the event that the Wife’s solicitors do not give notice of intention to cross-examine pursuant to paragraph (3) hereof, the Wife shall file and serve any further written submissions she wishes to make in the property adjustment proceedings having regard to the further evidence now adduced by close of business on Friday, 9 June 2017 and the Husband shall file and serve any further written submissions he wishes to make in the property adjustment proceedings having regard to the further evidence now adduced by close of business on Friday, 23 June 2017.

AND IT IS ORDERED UNTIL FURTHER ORDER

That Orders 3 and 6 of the interim Orders made by Justice Forrest on 3 February 2017, are discharged.
That the Wife is hereby appointed, to the extent that it is necessary, as the sole trustee for the sale of the following vehicles owned by the C Trust:
(i)Vehicle 1;
(ii)Vehicle 2 reg. …;
(iii)Vehicle 3 reg. …; and
(iv)Vehicle 4 reg. …;
and, in the interests of clarity, those vehicles shall not be…

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 Rennie and Rennie

Details

AGLC: Rennie and Rennie [2017] FamCA 329
Case: [2017] FamCA 329
Decision Date: 19 May 2017

CaseChat Overview and Summary

In the matter of *Rennie and Rennie*, Forrest J considered an application by the Husband to re-open his case in property adjustment proceedings that had concluded on 3 February 2017. The Husband sought leave to rely on further evidence contained in an affidavit filed on 7 April 2017, specifically certain paragraphs and annexures relating to financial and medical information.

The primary legal issue before the court was whether to grant the Husband leave to re-open his case and admit the additional evidence. This involved considering the principles governing the re-opening of cases and the admission of fresh evidence after the conclusion of a trial, particularly in the context of family law property adjustment proceedings. The court also had to determine the procedural steps required to allow the Wife to respond to the new evidence, including the possibility of cross-examination and the filing of further submissions.

Forrest J granted the Husband leave to re-open his case and to rely on specific portions of his affidavit and its annexures. The court also made directions regarding the Wife's ability to cross-examine the Husband and a psychiatrist concerning the new evidence, setting deadlines for notification of intent to cross-examine. If no cross-examination was intended, further written submissions were to be filed by both parties within specified timelines. Additionally, certain interim orders were discharged, and the Wife was appointed as the sole trustee for the sale of specific vehicles owned by the C Trust, with directions regarding the handling of sale proceeds and lease payments. An existing order concerning water licences was also varied for clarity.

Orders

Orders of the court

IT IS ORDERED

That leave is granted for the Husband to re-open his case in property adjustment proceedings BRC1329 of 2014, where the trial was concluded on 3 February 2017.

That, further, leave is granted for the Husband to read in those re-opened proceedings and to rely upon only the following further evidence contained in his affidavit filed 7 April 2017:

(i) Paragraphs 6 – 22 and annexures MSR-02 and MSR-03;

(ii) Paragraphs 23 – 28 and annexure MSR-05;

(iii) Paragraphs 29 – 34 and annexures MSR-06 and MSR-07;

(iv) Paragraphs 75 – 78.

That the Wife’s solicitors inform the Court, through the Judge’s Associate, and also inform the Husband’s solicitors by close of business on Friday, 26 May 2017, if the wife intends to cross-examine the husband and/or the psychiatrist who is the author of the report marked annexure MSR-03 in respect of the further evidence relied upon by the Husband in the re-opened proceedings, whereupon the matter will be listed for further directions to be made so as to facilitate that.

That in the event that the Wife’s solicitors do not give notice of intention to cross-examine pursuant to paragraph (3) hereof, the Wife shall file and serve any further written submissions she wishes to make in the property adjustment proceedings having regard to the further evidence now adduced by close of business on Friday, 9 June 2017 and the Husband shall file and serve any further written submissions he wishes to make in the property adjustment proceedings having regard to the further evidence now adduced by close of business on Friday, 23 June 2017.

AND IT IS ORDERED UNTIL FURTHER ORDER

That Orders 3 and 6 of the interim Orders made by Justice Forrest on 3 February 2017, are discharged.

That the Wife is hereby appointed, to the extent that it is necessary, as the sole trustee for the sale of the following vehicles owned by the C Trust:

(i) Vehicle 1;

(ii) Vehicle 2 reg. …;

(iii) Vehicle 3 reg. …; and

(iv) Vehicle 4 reg. …;

and, in the interests of clarity, those vehicles shall not be used at all, other than as determined by the Wife pending sale and the Husband shall follow all directions issued by the Wife in respect of those vehicles pending their sale, including in respect of the delivery into the Wife’s possession or the possession of her nominee any and all things, including documents and records, necessary for the sale of the said vehicles.

That the Wife shall deposit the net proceeds of sale, after discharge of any lease liability pertaining to the particular machine sold and payment of costs of sale, to the bank account of the C Trust, which account only she shall be entitled to draw upon, and she shall be entitled to use any of the funds deposited to that bank account to meet any lease payments pertaining to any lease on any of the vehicles that might remain unsold as such lease payments fall due and owing.

That Order 11 of the interim Orders made by Justice Forrest on 3 February 2017 be varied by replacing the words “water licences” on line 5 thereof with the words “the water allocation identified as WA … on AP …, title reference …”.

AND IT IS FURTHER ORDERED

Costs

That each party shall bear his and her own costs of and incidental to the determination of this application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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