Seaton and Seaton (No. 2) - [2018] FamCA 1101

FAMILY COURT OF AUSTRALIA

SEATON & SEATON (NO. 2)

[2018] FamCA 1101

FAMILY LAW – PRACTICE AND PROCEDURE – Leave granted for a subpoena to issue – Wife’s application adjourned to a fixed date – Orders and directions made for the filing of affidavit material.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Song & Ying [2010] NSWCA 237

APPLICANT:

Ms Seaton

RESPONDENT:

Mr Seaton

FILE NUMBER:

SYC

3756

2017

DATE DELIVERED:

27 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

27 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ayliffe SC

SOLICITOR FOR THE APPLICANT:

C Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Karras Lawyers

Orders

These proceedings be adjourned to 9.30 am on Thursday 6 December 2018 at Hobart.
Leave be granted for the wife to cause a subpoena to be issued directly to Mr B Seaton requiring him to attend court to give evidence at 9.30 am on Thursday 6 December 2018 at the Hobart Registry of the Family Court.
Leave be given for the solicitor for the respondent husband to attend by video-link from Sydney to Hobart on 6 December 2018.
Four (4) days prior to 6 December 2018 Mr B Seaton make, file and serve any affidavit upon which he wishes to rely in support of any application that he intends to make for:-
(a)the granting of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth); and
(b)a direction that his evidence in chief be given by affidavit which he is to make, file and serve on or before 18 December 2018.
Costs of both parties be reserved.
BY CONSENT order 5 made 21 November 2018 be varied that the husband make, file and serve a Response to the applicant’s Notice of Facts, Issues and Contentions within forty eight (48) hours of the date that the affidavit of Mr B Seaton is filed and served or 19 December 2018, whichever is the later.

IT IS DIRECTED

A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel to attend.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaton & Seaton (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3756 of 2017

Ms Seaton

And

Mr Seaton

EX TEMPORE REASONS FOR…

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 Seaton and Seaton (No. 2)

Details

AGLC: Seaton and Seaton (No. 2) [2018] FamCA 1101
Case: [2018] FamCA 1101
Decision Date: 27 November 2018

CaseChat Overview and Summary

In the matter of *Seaton and Seaton (No. 2)*, Benjamin J of the Family Court of Australia considered applications made by the wife in ongoing proceedings. The dispute concerned the wife's request to issue a subpoena directly to Mr B Seaton, requiring his attendance to give evidence, and related procedural matters.

The primary legal issues before the court were whether to grant leave for the wife to issue a subpoena directly to Mr B Seaton, and how to manage the evidence and appearances of parties and witnesses in light of the impending hearing. The court also had to consider applications that Mr B Seaton might intend to make regarding certificates under the *Evidence Act 1995* (Cth) and the form of his evidence.

Benjamin J granted leave for the wife to issue a subpoena directly to Mr B Seaton, requiring his attendance on 6 December 2018. The court also permitted the husband's solicitor to attend the hearing by video-link. Directions were made for Mr B Seaton to file and serve any affidavit he intended to rely upon in support of applications for a certificate under s 128 of the *Evidence Act 1995* (Cth) or for his evidence in chief to be given by affidavit. Costs were reserved. The court further varied a previous order, requiring the husband to file and serve a Response to the applicant’s Notice of Facts, Issues and Contentions within a specified timeframe, contingent on the filing and service of Mr B Seaton's affidavit.

Orders

Orders of the court

These proceedings be adjourned to 9.30 am on Thursday 6 December 2018 at Hobart.

Leave be granted for the wife to cause a subpoena to be issued directly to Mr B Seaton requiring him to attend court to give evidence at 9.30 am on Thursday 6 December 2018 at the Hobart Registry of the Family Court.

Leave be given for the solicitor for the respondent husband to attend by video-link from Sydney to Hobart on 6 December 2018.

Four (4) days prior to 6 December 2018 Mr B Seaton make, file and serve any affidavit upon which he wishes to rely in support of any application that he intends to make for:-

(a) the granting of a certificate pursuant to s 128 of the Evidence Act 1995 (Cth); and

(b) a direction that his evidence in chief be given by affidavit which he is to make, file and serve on or before 18 December 2018.

Costs of both parties be reserved.

BY CONSENT order 5 made 21 November 2018 be varied that the husband make, file and serve a Response to the applicant’s Notice of Facts, Issues and Contentions within forty eight (48) hours of the date that the affidavit of Mr B Seaton is filed and served or 19 December 2018, whichever is the later.

IT IS DIRECTED

A copy of the reasons for these orders be taken out and placed on the Court file.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel to attend.

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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