Shields & Cassidy
[2022] FedCFamC1F 614
Federal Circuit and Family Court of Australia
(DIVISION 1)
Shields & Cassidy [2022] FedCFamC1F 614
File number(s): SYC 8787 of 2021 Judgment of: HARPER J Date of judgment: 2 August 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Property – Joinder of a party – Discovery – Where wife holds documents from the husband’s previous family law proceedings (“the documents”) – Where husband seeks the return of the documents – Where wife claims the documents are relevant to the current proceedings – Where husband seeks interim orders restraining the wife from disseminating the information contained in the documents and for delivery of the document – Documents are to be taken to be the husband’s documents – Wife to return the documents to the husband – Copies of the documents held by the wife to be destroyed – Husband to comply with ordinary disclosure obligations. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 2 August 2022 Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Neville, Hourn & Borg Legal Counsel for the Respondent: Mr McNally SC Solicitor for the Respondent: Lobban McNally Lawyers ORDERS
SYC 8787 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHEILDS
Applicant
AND: MR CASSIDY
Respondent
order made by:
HARPER J
DATE OF ORDER:
2 AUGUST 2022
THE COURT ORDERS THAT:
1.The Minute of Orders submitted by the parties on 2 August 2022 be marked Exhibit “A”.
2.By consent, orders be made in accordance with Exhibit A.
3.Within 72 hours of the date of these orders, the Applicant Wife (“the wife”) take all necessary steps to deliver into the custody of the solicitors for the Respondent Husband (“the husband”) the documents listed in Schedule 1, together with any copies other than copies of Items 2, 8, and 13.
4.Within seven days thereafter, the husband is to give disclosure of such documents as are required to be disclosed in accordance with Part 6.1 of Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules).
5.All questions of costs be reserved.
THE COURT NOTES THAT:
A.Upon compliance with these orders, any further procedures or applications in relation to the documents the subject of the schedule should take place in accordance with Part 6.2 of Chapter 6 of the Rules, including any request for the provision of a copy of said documents.
THE COURT FURTHER ORDERS THAT:
6.To the extent the wife retains electronic copies of any of the documents specified in Schedule 1, those electronic copies be deleted by no later than 10.00am on 3 August 2022.
7.The interim applications listed for hearing before me on 2 August 2022 be otherwise dismissed.
8.The matter be stood over to 2 September at a time to be advised for Directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shields & Cassidy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property adjustment proceedings. The parties were in a de facto relationship between 2013 and 2021.
The Applicant Wife (“the wife”) commenced the proceedings by filing an Initiating Application on 25 November 2021. The property pool is large, in the order of about $17 million, and the proceedings have been included in the Major Complex Financial Matters List.
By his Amended Response to the Initiating Application filed on 12 July 2022, the Respondent Husband (“the husband”) sought a range of interim orders restraining the wife from disseminating information and for delivery up of certain documents in her possession. He filed a further Application in a Proceeding on 19 July 2022, seeking joinder of a company called B Pty Ltd.
The interlocutory issues raised in those applications were listed for hearing on 2 August 2022. At the hearing, a number of issues became the subject of agreement. Several orders were made by consent, including the joinder of B Pty Ltd. The remaining issues requiring determination were limited to a dispute over documents relating to the husband’s earlier family law proceedings with his former wife, Ms E.
The documents in question are precisely specified in the husband’s case outline and are set out as Schedule 1 to these reasons. There is no dispute that these documents are in the possession of the wife; she concedes she took them.
The parties relied upon the following evidence and other material:
(a)the husband’s affidavit filed on 24 December 2021, paragraphs 9–14 , 29, 52–55, and annexure B;
(b)Exhibit 1 (the husband’s Tender Bundle);
(c)the wife’s affidavit filed on 24 November 2021, paragraphs 26 and 32;
(d)the wife’s affidavit filed on 13 April 2022, paragraphs 1–11, 25–26 and annexures C, D, and E.
The ambit of the dispute that remains may be stated as follows. The husband contends the wife had no right to take or hold the documents specified in Schedule 1. He has asked her to return them. The wife has refused, claiming they are all apparently relevant to these proceedings. The husband conceded some of the documents have apparent relevance to these proceedings. He agreed the wife could retain a copy of items 2, 8 and 13. However, he argues that the wife should deliver up to him all the originals and destroy copies other than those of items 2, 8 and 13 until a proper process of disclosure is undertaken in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). This would allow any claims for privilege to be properly considered and the interests of Ms E, his former wife, protected to the extent necessary.
I accept that the documents, being the husband’s documents from previous litigation, are to be taken to be his documents for the purposes of these applications. On no view could they be taken to be documents of the wife. The wife claimed the husband gave her access to some of the documents from his family law litigation with Ms E during their relationship. She claims she gave him emotional support. In her affidavit filed 13 April 2022, she states:
6. During 2013 [Mr Cassidy] was a party to Family Court Proceedings with his ex-wife, [Ms E]. During this period, I provided [Mr Cassidy] emotional support related to those proceedings and [Mr Cassidy] would provide me documents related to the Family Court proceedings ([Ms E] Documents) to allow us to discuss them and facilitate the emotional support I was providing.
7. I am aware of additional documents relating to the [Ms E] proceedings which are in the possession of [Mr Cassidy] and stored at [Mr Cassidy]’s storage space.
In my view, this evidence establishes no more than that the husband showed the wife some documents related to the litigation with Ms E, for the purpose of receiving emotional support. The wife does not, in her evidence, contend the husband gave her the documents enumerated in Schedule 1 or gave her permission to take them or copy them.
The wife argues that the husband’s application is a waste of time and violates the overarching purpose specified in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) and r 1.04 of the Rules. She claims it is absurd to compel her to deliver up documents, only for them to then be disclosed by the husband to her. She argued the husband’s application was an attempt to deny her access to the documents.
I note here that the husband sought to cross-examine the wife, but I refused leave.
I do not accept the submissions of the wife. I agree that the limited dispute the subject of this judgment is ripe for some common sense, but that has presently eluded the parties, at least in relation to the documents in Schedule 1.
Be that as it may, I am satisfied the wife has failed to demonstrate any right to take the documents in the first place and no right to retain them. There is force in the husband’s argument that a proper process of disclosure should take place in accordance with the Rules. I am satisfied the wife should deliver up the documents and any copies to allow this to happen.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 2 August 2022. Associate:
Dated: 23 August 2022
EXHIBIT A
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
AT SYDNEYNo. SYC 878/2021
BETWEEN
MS SHEILDS
(Applicant)
and
MR CASSIDY
(Respondent)AGREED MINUTE OF ORDER
IT IS ORDERED:-
1.B Pty Ltd (B Pty Ltd), be joined to the proceedings as the second respondent.
2.The requirement for B Pty Ltd to file a Response to Final Orders be dispensed with.
3.The applicant is restrained, save for the proper purpose of conducting these proceedings including obtaining medical or mental health support in relation to the proceedings, from:
(a)disparaging and/or defaming the first respondent;
(b)interfering with the business affairs and/or damaging the business reputation of the first respondent;
(c)disseminating, disclosing, communicating and/or publishing any details of these proceedings;
(d)disseminating, disclosing, communicating and/or publishing any document, record or information the applicant has obtained in relation to the first respondent’s private or commercial life or activities;
(e)disseminating, disclosing, communicating and/or publishing any document, record or information the applicant has obtained in relation to proceedings No … in the Family Court of Australia between the first respondent and his former wife Ms E (the Ms E proceedings); and/or
(f)disseminating, disclosing, communicating and/or publishing any document, record or information the applicant has obtained in relation to the confidential information of the second respondent, B Pty Ltd, which includes all records, reports, computer software, client lists or other documents, information, ideas, concepts or material used, obtained, written or prepared by the applicant during the applicant’s employment with B Pty Ltd (irrespective of the premises the applicant may have been at the time) or relating to the affairs or the affairs of any company, partnership, co-venture, trust or other entity of or in which the first respondent (or any entity associated with the respondent) is a shareholder, unitholder, partner, director, member or trustee or in which the first respondent has any interest (directly or indirectly, and including as an employee or consultant) (High Pass Holdings Confidential Information).
4.The applicant undertakes to the Court that the only High Pass Holdings Confidential Information documents she has in her possession are those provided in disclosure by the respondent in three tranches dated 10 September 2021, 24 September 2021 and 7 October 2021.
5.The applicant return, but also retain a copy of, the following documents (identified as Item Nos 2, 8 and 13 of paragraph [32] of the respondent’s Outline of Case document dated 12 July 2022):
(a)Financial questionnaire dated 21 March 2013.
(b)Respondent’s financial statement filed 28 February 2013.
(c)List of shares in the respondent’s name and a self-managed super fund’s name.
Dated: 2/8/2022
Schedule 1
Affidavit of Mr C sworn 26 February 2021
Financial questionnaire dated 21 March 2013
Letter from G Company to the respondent dated 31 July 2013
Consent orders dated 6 March 2013 Letter from Lobban McNally to D Lawyers dated 22 April 2013, 15 May 2013
Respondent's mediation position paper dated 22 April 2013
Respondent's affidavit filed 28 February 2013
Respondent's financial statement filed 28 February 2013
Ms E's financial statement filed 10 January 2013
Response filed 28 February 2013
Binding child support agreement
Consent orders dated 1 March 2013
List of shares in the respondent's and a self-managed super fund's name
Letter from Mr F of counsel to Lobban McNally dated 26 April 2013
Respondent's travel diary
Undated handwritten note
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