Segur v Segur - [2010] FamCA 556

FAMILY COURT OF AUSTRALIA

SEGUR & SEGUR

[2010] FamCA 556

FAMILY LAW – EVIDENCE – parenting and financial proceedings – application to admit rules of evidence that would otherwise be non-operative under div.12A to prevent separate hearings – modest pool of assets for division – whether a Magellan case is an “exceptional circumstance” pursuant to s.69ZT(3) – purpose underlying in the Rules to resolve the matter in a just and timely manner

Family Law Act 1975 (Cth), ss 69ZM, 69ZN, 69ZT, 75(2)
Family Law Rules 2004 (Cth), r.1.04.

R v Kelly (Edward) [2000] QB 198

APPLICANT:

Ms Segur

RESPONDENT:

Mr Segur

INDEPENDENT CHILDREN’S LAWYER:

Ms F Carlton

FILE NUMBER:

MLC

11159

2008

DATE DELIVERED:

3 February 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

3 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms L. Colla

SOLICITOR FOR THE APPLICANT:

JA Middlemiss

COUNSEL FOR THE RESPONDENT:

Mr J. St John SC

SOLICITOR FOR THE RESPONDENT:

McDonald Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Laidlaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

IT IS ORDERED:

That by way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon Friday 5 February 2010, the practitioner for each of the mother and father provide notice in writing to his/her client of:-
a)the actual costs incurred by the client up to the final trial;
b)any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;
c)the costs payable for each day of the trial;
d)the estimated length of the trial;
e)the date of payments made and the source of the funds for the costs paid or to be paid so that:-
i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;
ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and
iiiif costs have been paid in cash, the details must identify the payer.
That contemporaneously with compliance by the practitioner concerned with paragraph 1 of this Order, the practitioner provide a copy of the notifications to my Associate, by facsimile or email and to the solicitor for the other parties.
That by Friday 5 February 2010 the practitioners for the husband provide any schedule to the father’s last filed financial statement.
That by 12.00 noon on Thursday 4 February 2010 each party provide to the other and to my Associate a list of affidavits and other evidence which that party proposes to rely upon at the final hearing.
That by 12.00 noon on Friday 5 February 2010 each party advise all other parties to the proceedings of the witnesses they require for cross-examination.
That the parties do all acts and things necessary to ensure that each of them and their advisors have an opportunity…

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 Segur v Segur

Details

AGLC: Segur v Segur [2010] FamCA 556
Case: [2010] FamCA 556
Decision Date: 3 February 2010

CaseChat Overview and Summary

In the matter of *Segur v Segur*, Bennett J of the Family Court of Australia made orders concerning the conduct of a final hearing. The proceedings involved a dispute between the mother and father regarding parenting arrangements for their three children.

The court was required to determine various procedural and evidentiary matters to ensure the efficient and effective conduct of the final hearing. These included the disclosure of legal costs, the provision of financial statement schedules, the exchange of proposed evidence and witness lists, and the identification of documents to be referred to during the trial. The court also addressed the viewing of VATE interviews, the issuance of subpoenas by the independent children's lawyer, and the preparation of a court book.

Bennett J applied the Family Law Rules 2004 and the Evidence Act 1995 to manage the case. The reasoning focused on ensuring that parties and their legal representatives were adequately prepared for the final hearing, which was scheduled to commence shortly. The orders mandated specific timelines for the disclosure of information, including detailed breakdowns of costs incurred and anticipated, lists of evidence and witnesses, and outlines of argument addressing key issues such as parental responsibility and the children's best interests under sections 60CC(2) and 60CC(3) of the relevant Act.

The court ordered that practitioners for both the mother and father provide detailed written notice of costs incurred and anticipated to their clients and to the opposing party's solicitor by 12.00 noon on Friday, 5 February 2010. Further orders directed the exchange of financial statement schedules, lists of evidence, witness requirements for cross-examination, and outlines of case, with strict deadlines leading up to the commencement of the final hearing on 8 February 2010. The court also requested the Registry Manager to allocate resources for viewing VATE interviews and for Chambers to prepare a court book.

Orders

Orders of the court

IT IS ORDERED:

That by way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon Friday 5 February 2010, the practitioner for each of the mother and father provide notice in writing to his/her client of:-

a) the actual costs incurred by the client up to the final trial;

b) any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;

c) the costs payable for each day of the trial;

d) the estimated length of the trial;

e) the date of payments made and the source of the funds for the costs paid or to be paid so that:-

i. if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;

ii. if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and

iii if costs have been paid in cash, the details must identify the payer.

That contemporaneously with compliance by the practitioner concerned with paragraph 1 of this Order, the practitioner provide a copy of the notifications to my Associate, by facsimile or email and to the solicitor for the other parties.

That by Friday 5 February 2010 the practitioners for the husband provide any schedule to the father’s last filed financial statement.

That by 12.00 noon on Thursday 4 February 2010 each party provide to the other and to my Associate a list of affidavits and other evidence which that party proposes to rely upon at the final hearing.

That by 12.00 noon on Friday 5 February 2010 each party advise all other parties to the proceedings of the witnesses they require for cross-examination.

That the parties do all acts and things necessary to ensure that each of them and their advisors have an opportunity to view the VATE interviews produced on subpoena to the Court and IT IS REQUESTED that the Registry Manager allocate appropriate resources for the purpose of viewing.

That there be leave to the independent children’s lawyer to issue such subpoenae to attend Court and give evidence or produce documents as she considers appropriate.

That by 4.00 pm on Thursday 4 February 2010 each party identify, on a page by page basis the documents from the documents produced on subpoena will be referred to in the running of the case and IT IS REQUESTED that my Chambers attend to the preparation of a Court Book containing copies of all such documents and do so notwithstanding any issues as to admissibility. IT IS NOTED that the documents will not be evidence in the trial unless tendered in the ordinary course of proceedings.

That the husband and the wife each file an outline of case including a minute of orders sought by not later than 4.00 pm on Thursday 4 February 2010 and that the independent children’s lawyer do likewise by 12.00 noon on Friday 5 February 2010 save that her outline also be accompanied by a chronology of relevant dates and events.

That the case outline document summarise the arguments in support of each party’s case including, but not necessarily limited to, the following issues:-

a. Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and

b. Whether it is the best interests of the children B born … December 1999, H born … December 2001 and G born … July 2005 to spend equal time with each parent and, if not, why not; and

i. Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and

ii. What parenting orders are sought by that party;

iii. Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.

10.

That pursuant to s69ZT(3) the provisions of Evidence Act 1995 referred to in s69ZT(1) apply to the final hearing of this matter.

AND THE COURT NOTES that this matter is listed for final hearing to commence as the first matter on 8 February 2010 at 10.00 am.

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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