SELLICK & SHIELDS - [2020] FamCA 241

FAMILY COURT OF AUSTRALIA

SELLICK & SHIELDS

[2020] FamCA 241

FAMILY LAW – PRACTICE AND PROCEDURE – Production of documents – Where orders were made for the husband to produce financial documents of companies he has interests in – Where the documents have not been produced – Where the wife seeks the production of the documents – Where the husband initiated proceedings in the Federal Court of Australia to obtain the documents - Where the husband has been reappointed as a director of the companies – Where the documents are relevant and within the husband’s control - Orders

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – Where the wife seeks the discovery of a settlement agreement of proceedings in the Federal Court of Australia involving the husband and other parties – Where the husband asserts the agreement is confidential and not relevant – Orders

Corporations Act 2001 (Cth) s 247A
Family Law Rules 2004 (Cth) Ch 13
Federal Court Rules 2011 (Cth) rr 20.11, 20.12, 20.14, 20.15

Alanco Australia Pty Ltd v Higgins (No 2) [2011] FCA 1063
Briese & Briese (1986) FLC 91-718
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Martin & Martin and Anor (No. 2) [2014] FamCA 232
Re McGorm, Ex parte Co-Operative Building Society of South Australia (1989) 86 ALR 275
Stinson & Stinson and Anor [2012] FamCA 520

APPLICANT:

Ms Sellick

RESPONDENT:

Mr Shields

FILE NUMBER:

ADC

4790

2016

DATE DELIVERED:

17 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

13 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bullock

SOLICITOR FOR THE APPLICANT:

Norman Waterhouse Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Howe Jenkin

Orders

That within twenty eight (28) days of this order the husband cause production to Mr B of the documents sought by him in his email dated 21 October 2019.
That the husband provide discovery of the terms of settlement of the Federal Court of Australia proceedings …/2019.

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 Sellick & Shields 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 ADELAIDE

FILE NUMBER: ADC 4790 of 2016

Ms Sellick

Applicant

And

Mr Shields

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Initiating Application filed 9 December 2016, Ms Sellick (formerly Shields) (“the wife”) seeks orders by way of settlement of property pursuant to Part VIII of the Family Law Act 1975 (Cth)…

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 SELLICK & SHIELDS

Details

AGLC: SELLICK & SHIELDS [2020] FamCA 241
Case: [2020] FamCA 241
Decision Date: 17 April 2020

CaseChat Overview and Summary

In the matter of *Sellick & Shields*, Berman J of the Federal Court of Australia considered applications concerning the production of financial documents and discovery of a settlement agreement. The wife sought the production of financial documents relating to companies in which the husband held interests, which had not been produced despite prior orders. The husband had also initiated proceedings in the Federal Court to obtain these documents, and had since been reappointed as a director of the companies. Additionally, the wife sought discovery of a settlement agreement from Federal Court proceedings involving the husband and other parties, to which the husband objected on grounds of confidentiality and relevance.

The primary legal issues before the Court were whether the husband should be compelled to produce the outstanding financial documents of the companies, and whether he should be required to provide discovery of the terms of the settlement agreement from the Federal Court proceedings. The Court had to determine if these documents were relevant and within the husband's control, and if any claims of confidentiality or lack of relevance were sufficient to resist production and discovery.

Berman J reasoned that the financial documents were relevant and within the husband's control, particularly given his reappointment as a director of the companies. The Court found no impediment to ordering their production. Regarding the settlement agreement, the Court ordered its discovery, implicitly finding it to be relevant and not protected by confidentiality to the extent that it could resist disclosure in these proceedings.

Consequently, the Court ordered that within twenty-eight days, the husband must cause the production of the financial documents sought in his email dated 21 October 2019. The husband was also ordered to provide discovery of the terms of settlement of the Federal Court of Australia proceedings.

Orders

Orders of the court

That within twenty eight (28) days of this order the husband cause production to Mr B of the documents sought by him in his email dated 21 October 2019.

That the husband provide discovery of the terms of settlement of the Federal Court of Australia proceedings …/2019.

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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