Theobald and Delancy (No.3) - [2012] FMCAfam 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THEOBALD & DELANCY (No.3)

[2012] FMCAfam 96

FAMILY LAW – Practice and procedure – whether the Court has the power to order a party to sign a Freedom of Information authority to Centrelink – whether limitations should be allowed in respect of information sought under that authority.

Civil Procedure Act 2005 (NSW), s.56
Family Law Rules 2004, re.1.04
Family Law Rules 2005 (Cth)
Federal Magistrates Court Rules2001 (Cth), Reg. 1.03, 14.11, 24.03, 24.04

Federal Magistrates Act 1999 (Cth), s.45
Social Security (Administration) Act 1999 (Cth), s.207

Attard v Hore [2002] QSC 437
Merkuloff v Yalisheff [2003] NSWSC 1183
Mitty & Mitty & Ors (No.2) [2008] FamCA 973
Wray v Wray [2007] NSWSC 164

Applicant:

MR THEOBALD

Respondent:

MS DELANCY

File Number:

SYC 4104 of 2009

Judgment of:

Monahan FM

Hearing date:

31 January 2012

Date of Last Submission:

31 January 2012

Delivered at:

Sydney

Delivered on:

15 February 2012

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Meehans Solicitors

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Kerrisons - The Law Firm

Independent Children’s Lawyer:

Mark Whelan, Lawyer

ORDERS

By not later than 4:00pm on 17 February 2012, the Respondent sign, date and cause her solicitors to forward to the Applicant’s solicitors an authority under the Freedom of Information Act 1982 (Cth) authorising and directing Centrelink, without qualification, to provide to the Sydney Registry of this Court a copy of her Centrelink file, including all applications made for Centrelink or other benefits, letters and all other correspondence on the file.
The Applicant bear or otherwise reimburse the Respondent for any fees associated with the Freedom of Information request.
The material produced under the Freedom of Information request be held together with the material produced under subpoenas issued in these proceedings and forthwith upon the receipt of such material, the parties’ legal representatives and the Respondent be granted inspection access thereto.
Paragraph three (3) of the orders sought in the Applicant’s Application in a Case filed on 1 December 2011 be consolidated with the matters to be considered at the Final Hearing.
The Applicant be granted leave to issue two (2) further subpoenas, bringing the total number of subpoenas filed by him to 10.
The Applicant forthwith cause his solicitors to forward a sealed copy of these Orders to the Respondent’s solicitors.
Subject to the issue of costs, the Applicant’s Application in a Case be otherwise dismissed.

AND THE COURT NOTES THAT:

(A)The Court expects the parties to file their updated Financial Statements and other material in accordance with the trial directions contained in the Orders made on 8 August 2011.
(B)The Applicant seeks his costs of his Application in a Case and this issue will be consolidated with the issues to be considered at the Final Hearing.

IT IS NOTED that publication of this judgment under the pseudonym Theobald & Delancy (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF…

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 Theobald and Delancy (No.3)

Details

AGLC: Theobald and Delancy (No.3) [2012] FMCAfam 96
Case: [2012] FMCAfam 96
Decision Date: 15 February 2012

CaseChat Overview and Summary

The parties involved in this case are Theobald and Delancy, with the court handling a dispute related to a Freedom of Information (FOI) request. The case was heard in the Federal Circuit Court of Australia. The Applicant sought an order compelling the Respondent to provide access to her Centrelink file and related documents, as well as other relief. The legal issues at hand were whether the Respondent should be compelled to provide the requested documents under the FOI Act and whether the Applicant should bear the costs associated with the FOI request. Additionally, the court had to determine if the Applicant should be granted leave to issue further subpoenas and if the costs of the application should be consolidated with the final hearing issues.

The court considered the FOI Act and the need for transparency in proceedings, particularly in matters involving child support. It was noted that the Respondent had previously been ordered to provide a copy of her Centrelink file, and the court emphasised the importance of ensuring that all relevant documents were available for the final hearing. The Applicant argued that the documents were necessary to establish the Respondent's financial circumstances and entitlement to child support. The court found that the Respondent should be compelled to provide the requested documents without qualification, and that the Applicant should bear the costs of the FOI request. Furthermore, the court granted the Applicant leave to issue two additional subpoenas, bringing the total to ten, and ordered that the material produced under the FOI request be held together with other produced material.

The court's reasoning was that the requested documents were essential for a fair determination of the case, and that the FOI Act should be used to ensure transparency and accountability. The court emphasised the importance of the final hearing and the need for all relevant information to be available to both parties. The outcome was that the Respondent was ordered to provide access to her Centrelink file and related documents, the Applicant was to bear the costs of the FOI request, and the Applicant was granted leave to issue two further subpoenas. The final orders also included provisions for the consolidation of certain issues with the final hearing and the updating of financial statements.

The final orders required the Respondent to sign, date, and cause her solicitors to forward an authority under the FOI Act to the Applicant's solicitors by a specified date, authorising Centrelink to provide a copy of her Centrelink file. The Applicant was to bear or reimburse the Respondent for any fees associated with the FOI request. The material produced under the FOI request was to be held together with other produced material, and the parties' legal representatives and the Respondent were to be granted inspection access. Additionally, certain orders sought in a previous application were to be consolidated with the final hearing matters, and the Applicant was granted leave to issue two further subpoenas. The Applicant was also required to forward a sealed copy of the orders to the Respondent's solicitors. The Applicant's application was otherwise dismissed, subject to the issue of costs, which was to be consolidated with the final hearing issues. The court also noted that the parties were to file updated financial statements and other material in accordance with trial directions.

Orders

Orders of the court

By not later than 4:00pm on 17 February 2012, the Respondent sign, date and cause her solicitors to forward to the Applicant’s solicitors an authority under the Freedom of Information Act 1982 (Cth) authorising and directing Centrelink, without qualification, to provide to the Sydney Registry of this Court a copy of her Centrelink file, including all applications made for Centrelink or other benefits, letters and all other correspondence on the file.

The Applicant bear or otherwise reimburse the Respondent for any fees associated with the Freedom of Information request.

The material produced under the Freedom of Information request be held together with the material produced under subpoenas issued in these proceedings and forthwith upon the receipt of such material, the parties’ legal representatives and the Respondent be granted inspection access thereto.

Paragraph three (3) of the orders sought in the Applicant’s Application in a Case filed on 1 December 2011 be consolidated with the matters to be considered at the Final Hearing.

The Applicant be granted leave to issue two (2) further subpoenas, bringing the total number of subpoenas filed by him to 10.

The Applicant forthwith cause his solicitors to forward a sealed copy of these Orders to the Respondent’s solicitors.

Subject to the issue of costs, the Applicant’s Application in a Case be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) The Court expects the parties to file their updated Financial Statements and other material in accordance with the trial directions contained in the Orders made on 8 August 2011.

(B) The Applicant seeks his costs of his Application in a Case and this issue will be consolidated with the issues to be considered at the Final Hearing.

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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