Venter & Venter - [2024] FedCFamC1F 523

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Venter & Venter [2024] FedCFamC1F 523

File number: BRC 7462 of 2024

Judgment of: CAREW J

Date of judgment: 6 August 2024

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Oral applications by the wife and a non-party respondent to adjourn the hearing of an urgent application by the husband – Consideration of whether an adjournment is necessary to do justice between the parties – Applications dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Urgent application by the husband seeking for procedural changes to the hearing of his and the other respondents’ costs applications, leave to issue subpoena, and production certain documents by the non-party respondents – Where the hearing of the costs applications is extended to a second day – Where parties that have been given notice that they will be required for cross-examination will be required to appear in person – Where leave to issue a subpoena for the giving of evidence but not the production of documents is granted – Where production of a certain document is required – Application otherwise dismissed.

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) rr 6.27, 6.29

Cases cited:
Mertens & Mertens [2016] FamCAFC 136

Venter & Venter (No 5) [2023] FedCFamC1F 635

Venter & Venter (No 6) [2024] FedCFamC1F 94

Number of paragraphs: 53

Date of hearing: 5 August 2024

Place: Brisbane

Solicitor for the Applicant: Ms Sergi as solicitor advocate, Kalus Kenny Intelex

Counsel for the First Respondent: Mr Kelly KC with Dr Smith

Solicitor for the First Respondent: Broun Abrahams Burreket

Counsel for the Second, Third, Fifth and Seventh Respondents: Mr Stewart KC with Mr Barnett

Solicitor for the Second, Third, Fifth and Seventh Respondents: Mangioni Biggs & Co

The Fourth Respondent: Did not participate

Solicitor for the Non-Party Respondent, Mr P: Mr Tuohey as solicitor advocate, Colin Biggers & Paisley

Solicitor for the Non-Party Respondent, GG Lawyers Mr Castley as solicitor advocate, Hall & Wilcox
ORDER

BRC 7462 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VENTER

Applicant

AND:
MR VENTER

First Respondent

MR B VENTER

Second Respondent

MR C VENTER (and others named in the Schedule)

Third Respondent

MR P

Non-Party Respondent

GG LAWYERS

Non-Party Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

6 AUGUST 2024

ORDER MADE BY THE COURT ON 5 AUGUST 2024
1.That the oral application by Ms Venter (“the wife”) and by Mr P for an adjournment of the Amended Application in a Proceeding filed by Mr Venter (“the husband”) on 2 August 2024, or part thereof, be dismissed.

THE COURT ORDERS THAT:
1.The hearing of the Applications in a Proceeding for costs filed by the husband and the second, third, fifth, and seventh respondents on 28 March 2024, currently listed for hearing for one day on 16 August 2024 is listed to commence at not before 11:00…

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 Venter & Venter

Details

AGLC: Venter & Venter [2024] FedCFamC1F 523
Case: [2024] FedCFamC1F 523
Decision Date: 6 August 2024

CaseChat Overview and Summary

In the case of Venter & Venter, the Family Court was presented with two applications. The first was an application by the wife and a non-party respondent to adjourn the hearing of an urgent application by the husband. The second was the husband’s urgent application seeking procedural changes to the hearing of his and other respondents' costs applications, leave to issue subpoena, and the production of certain documents by the non-party respondents. The applications were heard by the court, which had to determine whether an adjournment was necessary to do justice between the parties and whether the procedural changes requested by the husband were appropriate.

The court first considered the application by the wife and the non-party respondent to adjourn the hearing. The court evaluated the necessity of an adjournment to ensure a fair hearing for all parties involved. The court dismissed the application for an adjournment, finding that it was not necessary to do justice between the parties. The court then addressed the husband’s urgent application for procedural changes. The court extended the hearing of the costs applications to a second day and allowed parties not located in Brisbane to appear via Microsoft Teams video. The court also directed that the two non-party respondents attend the hearing in person for cross-examination. The court granted leave for the husband to issue a subpoena to a lawyer to give evidence at the hearing, but denied leave for the production of documents. The court further ordered the production of a specific email and dismissed the husband’s amended application.

The court’s decision was grounded in the need to balance the rights of the parties while ensuring an efficient and fair hearing process. The court dismissed the application for an adjournment as it found no necessity for an adjournment to achieve justice between the parties. Regarding the husband’s application, the court’s decision to extend the hearing to a second day and allow remote appearances was aimed at accommodating all parties while maintaining the efficiency of the proceedings. The requirement for the non-party respondents to attend in person was based on the notice provided that they would be required for cross-examination. The court's decision to grant leave to issue a subpoena but not for document production reflected a careful consideration of the procedural requests and their relevance to the hearing. Finally, the order for the production of a specific email was specific to the evidence required for the hearing.

Orders

Orders of the court

1. The hearing of the Applications in a Proceeding for costs filed by the husband and the second, third, fifth, and seventh respondents on 28 March 2024, currently listed for hearing for one day on 16 August 2024 is listed to commence at not before 11:00 am on 15 August 2024 for no more than two days.

2. Any party or legal representative not located in Brisbane has leave to appear at the hearing on 15 and 16 August 2024 by Microsoft Teams video.

3. The two non-party respondents, Mr P and Ms AL of GG Lawyers, are to attend the hearing in person as notice has been provided by the husband that they are required for cross-examination.

4. The husband has leave to issue a subpoena to Mr AK of MM Lawyers to give evidence at the hearing commencing on 15 August 2024.

5. In the event that any party presses for leave pursuant to r 8.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to adduce evidence orally from Mr AK at the costs hearing commencing on 15 August 2024, any such application be filed by no later than 4:00pm on 13 August 2024 and listed for hearing on 15 August 2024.

6. Mr P forthwith produce to the solicitors for the second, third, fifth, and seventh respondents a copy of the email dated 5 October 2021 referred to by Mr P in annexure P-13 to his affidavit sworn on 11 December 2023 and filed on 13 December 2023.

7. The husband’s Amended Application in a Proceeding filed 2 August 2024 is otherwise dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law 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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File number:	BRC 7462 of 2024
Judgment of:	CAREW J
Date of judgment:	6 August 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Oral applications by the wife and a non-party respondent to adjourn the hearing of an urgent application by the husband – Consideration of whether an adjournment is necessary to do justice between the parties – Applications dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Urgent application by the husband seeking for procedural changes to the hearing of his and the other respondents’ costs applications, leave to issue subpoena, and production certain documents by the non-party respondents – Where the hearing of the costs applications is extended to a second day – Where parties that have been given notice that they will be required for cross-examination will be required to appear in person – Where leave to issue a subpoena for the giving of evidence but not the production of documents is granted – Where production of a certain document is required – Application otherwise dismissed.
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) rr 6.27, 6.29
Cases cited:	Mertens & Mertens [2016] FamCAFC 136 Venter & Venter (No 5) [2023] FedCFamC1F 635 Venter & Venter (No 6) [2024] FedCFamC1F 94
Number of paragraphs:	53
Date of hearing:	5 August 2024
Place:	Brisbane
Solicitor for the Applicant:	Ms Sergi as solicitor advocate, Kalus Kenny Intelex
Counsel for the First Respondent:	Mr Kelly KC with Dr Smith
Solicitor for the First Respondent:	Broun Abrahams Burreket
Counsel for the Second, Third, Fifth and Seventh Respondents:	Mr Stewart KC with Mr Barnett
Solicitor for the Second, Third, Fifth and Seventh Respondents:	Mangioni Biggs & Co
The Fourth Respondent:	Did not participate
Solicitor for the Non-Party Respondent, Mr P:	Mr Tuohey as solicitor advocate, Colin Biggers & Paisley
Solicitor for the Non-Party Respondent, GG Lawyers	Mr Castley as solicitor advocate, Hall & Wilcox

BRC 7462 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS VENTER Applicant
AND:	MR VENTER First Respondent MR B VENTER Second Respondent MR C VENTER (and others named in the Schedule) Third Respondent
MR P Non-Party Respondent GG LAWYERS Non-Party Respondent

ORDER MADE BY:	CAREW J
DATE OF ORDER:	6 AUGUST 2024