FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vilas & Vilas [2023] FedCFamC1F 1141
File number(s): NCC 3703 of 2019 Judgment of: SMITH J Date of judgment: 15 December 2023 Catchwords: PRACTICE AND PROCEDURE – Orders: –– Child being called as a witness –s 100B of the Family Law Act 1975 – child 17 by Trial – child mature – child advised ICL in prior parenting proceedings that maternal grandfather intervenor said he would take all matrimonial assets by recovering loans in these proceedings and then give that money to wife – child lives with father - evidence relevant - potentially highly significant to major issues at final hearing – child may give evidence.
PRACTICE AND PROCEDURE – Production of documents.
Legislation: Evidence Act1995 (Cth) Pt 3.1, s 55
Family Law Act 1975 (Cth) Pts VIII, XI, ss 75(2), 100B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 1.3, 8.2, rr 1.31, 8.10
Cases cited: Hall & Hall (2016) 257 CLR 490; [2016] HCA 23 Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 14 December 2023 Place: Newcastle Counsel for the Applicant: Mr Wong Solicitor for the Applicant: Millyard Family Lawyers Counsel for the Respondent: Ms Evelyn Solicitor for the Respondent: Clarity Lawyers Counsel for the Intervener: Mr Bland Solicitor for the Intervener: Catherine Henry Lawyers ORDERS
NCC 3703 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VILAS
Applicant
AND: MS VILAS
Respondent
MR KILIAN AND B1 PTY LTD
Intervener
ORDER MADE BY:
SMITH J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The matter be listed for mention only at 9:30 am on 2 February 2024 by Microsoft Teams for the making of directions for a Final Hearing.
2.The Intervenor’s foreshadowed Application in a Proceeding be listed for Interim Hearing by Microsoft Teams at 10:00 am on 14 March 2024.
Child’s evidence
3.Pursuant to s 100B of the Family Law Act 1975 (Cth):
(a)The child X born 2007 be permitted to swear an affidavit in these proceedings generally in the form as set out at annexure A-2 to the Application in a Proceeding filed 17 November 2023, and the Applicant and his solicitors be permitted to do all things reasonably necessary to effect the settling and swearing of that affidavit.
(b)The child X be permitted to be called as a witness at the final hearing of these property proceedings on the subject matter of her Affidavit and her email dated 3 August 2023 (as redacted) to the Independent Children’s Lawyer.
(c)If required for cross examination, the child X shall give her oral evidence by audio-visual means by way of Microsoft Teams.
(d)The Respondents are to notify the Applicant whether or not the child is required for cross examination as soon as a decision is made.
Disclosure and subpoena
4.The Applicant has leave to issue subpoenas on any executor or executors of the estate of the Respondent’s late grandmother, and on…
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CaseChat Overview and Summary
The court ruled that X could swear an affidavit and testify at the final hearing, with provisions for remote testimony if needed. The court also granted the applicant's requests to issue subpoenas to estate executors and solicitors and ordered the production of various financial documents. The court emphasised the importance of timely disclosure and the need for a joint balance sheet to identify agreed and disputed asset values. Furthermore, the court set specific timelines for filing affidavits, court books, and submissions bundles. It reserved the costs of the proceedings until the final hearing and dismissed other prayers not directly related to the core issues at hand.
Orders
Orders of the court
NCC 3703 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR VILAS
Applicant
AND:
MS VILAS
Respondent
MR KILIAN AND B1 PTY LTD
Intervener
ORDER MADE BY:
SMITH J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1. The matter be listed for mention only at 9:30 am on 2 February 2024 by Microsoft Teams for the making of directions for a Final Hearing.
2. The Intervenor’s foreshadowed Application in a Proceeding be listed for Interim Hearing by Microsoft Teams at 10:00 am on 14 March 2024.
Child’s evidence
3. Pursuant to s 100B of the Family Law Act 1975 (Cth):
(a) The child X born 2007 be permitted to swear an affidavit in these proceedings generally in the form as set out at annexure A-2 to the Application in a Proceeding filed 17 November 2023, and the Applicant and his solicitors be permitted to do all things reasonably necessary to effect the settling and swearing of that affidavit.
(b) The child X be permitted to be called as a witness at the final hearing of these property proceedings on the subject matter of her Affidavit and her email dated 3 August 2023 (as redacted) to the Independent Children’s Lawyer.
(c) If required for cross examination, the child X shall give her oral evidence by audio-visual means by way of Microsoft Teams.
(d) The Respondents are to notify the Applicant whether or not the child is required for cross examination as soon as a decision is made.
Disclosure and subpoena
4. The Applicant has leave to issue subpoenas on any executor or executors of the estate of the Respondent’s late grandmother, and on any solicitor or solicitors who act or who have acted for the executor or executors.
5. The Applicant has leave to issue subpoenas on any executor or executors of the estate of the Respondent’s late mother, and on any solicitor or solicitors who act or who have acted for the executor or executors.
6. That within fourteen (14) days of the date of these Orders, the wife produce disclosure to the Husband as follows:
(i) A complete record of all bank statements for all bank accounts the wife holds in her name or in an associated entity from the period 22 July 2022 to the current date;
(ii) The wife’s income tax returns and notices of assessments for the financial year 2022.
(iii) The wife’s income tax returns and notices of assessments for the financial year 2023.
7. That within fourteen (14) days of the date of these Orders, Mr Kilian and B1 Pty Ltd (“the Intervenors”) produce disclosure to the Husband and the Wife as follows:
(i) Copy, Trust Deed for the Kilian Family Trust in existence as at 28 March 2011, with the original to be made available for inspection at the offices of the for the Intervenor by C Lawyers for the Husband and by the Wife’s Solicitors;
(ii) Copy, Deed of Variation for the Superannuation Fund 1 and completed Schedule B to this Deed with the originals to be made available for inspection at the offices of the Solicitors for the Intervenor by C Lawyers for the Husband and by the Wife’s Solicitors;
(iii) Copies of any binding death benefit nomination made by Ms D (deceased) with respect to payment of the deceased’s death benefit from her member interest in the Superannuation Fund 1 with the original to be made available for inspection at the offices of the Solicitors for the Intervenor by C Lawyers for the Husband and by the Wife’s Solicitors;
(iv) Copy of any resolution of director(s) of B2 Pty Ltd with respect to payment or transfer of Ms D’s (deceased) death benefit member entitlement from her member interest in the Superannuation Fund 1 to MR KILIAN date of birth 1948 and/or to MS VILAS date of birth 1979 with the original to be made available for inspection at the offices of the Solicitors for the Intervenor by C Lawyers for the Husband and by the Wife’s Solicitors;
(v) Copies of any documents relating to the appointment of the executors of the Estate of Ms D (deceased) as replacement directors for Ms D in B2 Pty Ltd after her death in 2011 for the period that Ms D remained a member of the Superannuation Fund 1;
(vi) A copy of the Income Tax Returns for Superannuation Fund 1 for the financial years 30 June 2011 to 30 June 2013;
(vii) Auditor’s reports for Superannuation Fund 1 for the financial years 30 June 2011 to 30 June 2013;
(viii) Any correspondence (electronic or otherwise) given to the Intervenors by their accountant as to the existence of any loan alleged between them and either of the spouse parties or entities under their control;
(ix) Any correspondence with the Wife and/or her Solicitors with regards to alleged loans between the Intervenors and either of the spouse parties or entities under their control.
8. If any documents ordered to be disclosed are not disclosed on the basis that they are not available, an affidavit attesting to the fact that they are not available and to the efforts and inquiries undertaken to locate the documents is to be sworn by the party not disclosing the documents.
9. If privileged is claimed in respect of any documents required to be disclosed, the documents are to be produced instead to the Court in a separate bundle marked “Privileged”, as if documents subject to subpoena, and the party claiming privilege is to prepare and provide to the other parties a list of the documents produced and the basis of the claim for privilege, for determination in due course by the Court.
Balance sheet and identification of outstanding valuation issues
10. The Applicant and First Respondent are to prepare and file a Joint Balance Sheet identifying all agreed values, and specifying values that are not agreed, with appropriate notations including whether any further expert valuation evidence is required, by 16 January 2024.
Parties
11. The Intervenors are to file any affidavit evidence in support of order 1 on the Application in a proceeding filed 24 September 2021 by 9 February 2024.
12. The Applicant and First Respondent are to file any Response and affidavit evidence in relation to order 1 on the Application in a proceeding filed 24 September 2021 by 1 March 2024.
13. Each party to file Court books and submissions bundles in relation to the Application in a proceeding filed 24 September 2021 by 4:00 pm on 11 March 2024.
14. Reserve all parties’ costs of and ancillary to the application in a proceeding filed 17 November 2023 to the final hearing.
15. Otherwise dismiss the remaining prayers in the Application in a proceeding filed 17 November 2023.
NOTATIONS:
A. The Intervenors indicate that the contract and debt question may take up to 5 (five) days to hear. There are apparently a number of witnesses who were allegedly present during a conversation in which there is a dispute about whether a debt was forgiven. The Court accepts it may be appropriate to call these witnesses.
B. The Court presently estimates a hearing of 10 days.
C. The matter will be given priority for hearing for 10 days, if required, in July-September 2024 and the matter is to be prepared on the basis that no further time will be given for preparation beyond that time-frame.
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.
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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