Stevenson and Manuel & Anor - [2014] FamCA 1050

FAMILY COURT OF AUSTRALIA

STEVENSON & MANUEL AND ANOR

[2014] FamCA 1050

FAMILY LAW – PROPERTY - Interim Orders - bifurcation – application to set aside final property orders pursuant to s 79A – where husband seeks to sever s 79A and s 79 proceedings – wife opposes application for bifurcation – where husband’s current partner joined to proceedings – orders made for the bifurcation of the s 79A proceedings but limited to the question of whether a miscarriage of justice has occurred.

FAMILY LAW – PRACTICE AND PROCEDURE – Privilege – Waiver – where husband viewed documents the subject of a claim of privilege - whether wife waived privilege by failing to object to the production and inspection of her former solicitor’s file – where wife denies she waived privilege and asserts husband was on notice of a claim of privilege – no waiver of privilege.

FAMILY LAW – COSTS – Security for Costs – where second respondent seeks security for costs – where second respondent will have limited role in s 79A proceedings – whether an order for security for costs would stifle proceedings – financial resources of the parties – orders made for the wife to provide limited security for costs for the husband and second respondent.

Family Law Act 1975 (Cth) s 79, 79A, 117(2A)
Family Law Rules 2004 (Cth) r 10.13, 10.14

Expense Reduction Analysts Group Pty Ltd and Ors v Armstrong Strategic Management and Marketing Pty Ltd and Ors (2013) 250 CLR 303
Grosso & Grosso [2013] FCWA 91
Lancer & Lancer [2008] FamCAFC 112

Luadaka & Luadaka (1998) FLC 92-830

Oastler & Oastler (1993) FLC 92-39

Patching & Patching (1995) 18 Fam LR 675; (1995) FLC 92-585

Stanford & Stanford (2012) 247 CLR 108

Wernham & Campagnola [2012] FamCAFC 137

APPLICANT:

Mr Stevenson

RESPONDENT:

Ms Manuel

SECOND RESPONDENT:

Ms Beckett

FILE NUMBER:

ADC

5873

2007

DATE DELIVERED:

26 November 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

11 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Adey Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Mellows

SOLICITOR FOR THE RESPONDENT:

Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE SECOND RESPONDENT:

Ms Kari

SOLICITOR FOR THE SECOND RESPONDENT:

Barnes Brinsley Shaw Lawyers

Upon noting that the Court finds that the wife has not waived legal professional privilege in relation to documents and materials contained in her former solicitors’ files.

Orders

The proceedings are adjourned to the First Day hearing before me at 10.00 am on 28 January 2015 for directions and listing of the threshold question and limited to whether there has been a miscarriage of justice pursuant to s 79A.
The further proceedings pursuant to s 79A are adjourned to await the outcome of the proceedings referred to in paragraph (1) hereof.
Compliance with paragraph 2 of the Orders of the Court on 13 November 2013 be stayed pending further Order and the outcome of determination of the proceedings referred to in paragraph…

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 Stevenson and Manuel & Anor

Details

AGLC: Stevenson and Manuel & Anor [2014] FamCA 1050
Case: [2014] FamCA 1050
Decision Date: 26 November 2014

CaseChat Overview and Summary

In the matter of *Stevenson and Manuel & Anor*, Dawe J of the Federal Circuit Court of Australia considered an application by the husband to bifurcate proceedings concerning an application to set aside final property orders pursuant to s 79A of the *Family Law Act 1975* (Cth). The wife opposed this bifurcation, and the husband's current partner was joined to the proceedings. The court also addressed issues of privilege and security for costs.

The primary legal issues before the court were whether the s 79A proceedings should be bifurcated, and if so, to what extent. Additionally, the court was required to determine whether the wife had waived privilege over documents from her former solicitor's file, and whether security for costs should be ordered in favour of the husband and the second respondent.

Dawe J ordered that the s 79A proceedings be bifurcated, but limited this bifurcation to the threshold question of whether a miscarriage of justice had occurred. The court found that privilege had not been waived by the wife, despite the husband having viewed the documents in question, as the wife had not consented to their production and had asserted privilege. Regarding security for costs, the court ordered the wife to provide limited security for the husband and the second respondent, noting the second respondent's limited role in the s 79A proceedings and the potential for proceedings to be stifled.

The proceedings were adjourned for directions and listing of the threshold question concerning the miscarriage of justice. Further s 79A proceedings were adjourned pending the outcome of this threshold determination. Compliance with a previous order was stayed, and the wife was restrained from reducing the funds in a specific managed fund below $60,000.00 as security for costs. An order restraining the second respondent from dealing with her interest in a property was varied to allow her to mortgage or encumber it for a loan not exceeding $100,000.00. The husband's application filed on 24 April 2014 was dismissed.

Orders

Orders of the court

The proceedings are adjourned to the First Day hearing before me at 10.00 am on 28 January 2015 for directions and listing of the threshold question and limited to whether there has been a miscarriage of justice pursuant to s 79A.

The further proceedings pursuant to s 79A are adjourned to await the outcome of the proceedings referred to in paragraph (1) hereof.

Compliance with paragraph 2 of the Orders of the Court on 13 November 2013 be stayed pending further Order and the outcome of determination of the proceedings referred to in paragraph (1) hereof.

By way of security for the husband’s costs and second respondent’s possible costs of the proceedings generally the wife is restrained and the injunction granted on 11 June 2014 is continued which restrains the wife from using the sum in the MLC Managed Fund to the extent the funds are not reduced below SIXTY THOUSAND DOLLARS [$60,000.00].

The Order of 12 April 2014 restraining the second respondent from in any way dealing with the property at Suburb A is discharged and in lieu thereof the following order is made:

(a) Until further order the second respondent Ms Beckett is restrained from selling, mortgaging, encumbering or in any way dealing with her interest in B Street, Suburb A in the State of South Australia SAVE AND EXCEPT that the second respondent is at liberty to mortgage or encumber the property for any loan not exceeding ONE HUNDRED THOUSAND DOLLARS [$100,000.00].

The husband’s Application in a Case filed 24 April 2014 is dismissed.

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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