Trevi and Trevi - [2016] FamCA 898

FAMILY COURT OF AUSTRALIA

TREVI & TREVI

[2016] FamCA 898

FAMILY LAW – PRACTICE AND PROCEDURE – where trial had concluded and judgment was reserved – where husband subsequently sought to rely upon a document in reply to the written closing submissions of the wife – where the document sought to be filed and relied upon augments the Reply of counsel for the husband in final submissions and does not constitute new evidence – leave granted because of the particular circumstances surrounding the procedure adopted for closing addresses.

Family Law Rules 2004 (Cth)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, regs 22.5, 22.7

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
Baghti & Baghti and Ors (No 2) [2014] FamCAFC 204
Eastman v Director of Public Prosecutions (ACT) (2003) 198 ALR 1
Marsh & Marsh and Anor [2013] FamCA 445

APPLICANT:

Mr Trevi

RESPONDENT:

Ms Trevi

FILE NUMBER:

MLC

8475

2014

DATE DELIVERED:

26 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

26 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T. North S.C. and Ms M. Smallwood

SOLICITOR FOR THE APPLICANT:

N Lawyers

COUNSEL FOR THE RESPONDENT:

Mr B. Geddes Q.C. and Mr Nehmy

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners

Orders

That the applicant husband is granted leave to rely upon the document which is Annexure MBS-01 to the Affidavit of Mr M filed 15 June 2016, by way of Reply to the wife’s written closing submissions dated 30 May 2016 in the trial.
That the respondent wife have leave to file and serve any submission in response, limited to matters of law which the wife asserts are contained in Annexure MBS-01, limited to 10 pages within 14 days.
That paragraph 1 of the respondent wife’s Response to an Application in a Case filed in court on 26 August 2016 be dismissed.
That no further documents be filed by the parties in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trevi & Trevi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8475 of 2014

Mr Trevi

Applicant

And

Ms Trevi

Respondent

REASONS FOR JUDGMENT

The applicant husband seeks leave by way of Application in a Case, after the conclusion of a lengthy trial and closing submissions, to rely upon a document entitled “Factual Anomalies in Applicant Wife’s Written Closing Submissions Dated 30 May 2016” being annexure MBS-01 to the affidavit of the solicitor for the husband filed 15 June 2016 (“Factual Anomalies document”). The respondent wife opposes the application.
Counsel for the wife had produced written closing submissions when he embarked upon his oral submissions. Counsel for the husband characterises this application as an opportunity to reply by filing and relying upon a document in response to the written closing submissions of the wife. He asserts that because of the lengthy…

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 Trevi and Trevi

Details

AGLC: Trevi and Trevi [2016] FamCA 898
Case: [2016] FamCA 898
Decision Date: 26 October 2016

CaseChat Overview and Summary

In the matter of *Trevi and Trevi*, heard before Thornton J, the applicant husband sought leave to rely upon a document, Annexure MBS-01, in his reply to the wife's written closing submissions. The wife sought to dismiss a specific paragraph from her own Response to an Application in a Case.

The primary legal issues before the court were whether the applicant should be granted leave to introduce Annexure MBS-01 as evidence in reply, and whether the wife's application to dismiss a paragraph from her own filing should be granted. The court also considered the broader question of whether any further documents should be filed by the parties.

Thornton J granted the husband leave to rely on Annexure MBS-01, acknowledging its relevance to the trial. The wife was also granted leave to file submissions in response, specifically limited to legal arguments arising from Annexure MBS-01. The court dismissed paragraph 1 of the wife's Response to an Application in a Case. Finally, the court ordered that no further documents were to be filed by either party in the proceedings.

Orders

Orders of the court

That the applicant husband is granted leave to rely upon the document which is Annexure MBS-01 to the Affidavit of Mr M filed 15 June 2016, by way of Reply to the wife’s written closing submissions dated 30 May 2016 in the trial.

That the respondent wife have leave to file and serve any submission in response, limited to matters of law which the wife asserts are contained in Annexure MBS-01, limited to 10 pages within 14 days.

That paragraph 1 of the respondent wife’s Response to an Application in a Case filed in court on 26 August 2016 be dismissed.

That no further documents be filed by the parties in these proceedings.

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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