Warin & Warin (No 8) - [2023] FedCFamC1F 362

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin (No 8) [2023] FedCFamC1F 362

File number MLC 7368 of 2020

Judgment of WILSON J

Date of judgment 11 May 2023

Catchwords FAMILY LAW – PRACTICE & PROCEDURE – last minute application to join a party, to obtain leave to issue, filed and serve subpoenae and for disclosure – leave for subpoenae granted – disclosure ordered – joinder application ordered to be brought forthwith – trial date maintained.

Legislation
Evidence Act 1995 (Cth) s 38

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.5

Cases cited Warin & Warin [2020] FamCA 796

Division Division 1 First Instance

Number of paragraphs 30

Date of last submissions 10 May 2023

Date of hearing 10 May 2023

Place Melbourne

Counsel for the applicant Mr J. Forrest

Solicitor for the applicant Vadarlis & Associates

Solicitor for the first and third respondents Sebastian Rubera & Associates

Solicitor for the fourth, fifth and sixth respondents McNab and Associates
ORDERS

MLC 7368 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS WARIN

Applicant

AND
MR WARIN

First Respondent

MR STANTON & MR BASFIELD IN THEIR CAPACITY AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF THE RESPONDENT HUSBAND

Second Respondent

MS INSTON (and others named in the Schedule)

Third Respondent

order made by

WILSON J

DATE OF ORDER

11 MAY 2023

THE COURT ORDERS THAT:
1.Leave is granted to the applicant to issue a subpoena against Mr Winsor, Mr JJ and Mr KK.
2.Discovery is required by the first respondent, forthwith, of -
(a)the husband's retained interest in Warin Nominees Pty Ltd;
(b)the "capital funds advance" to LL Pty Ltd or MM Pty Ltd;
(c)the receipt/banking/repayment of any of the capital funds advance; and
(d)any other documents related to those matters.

3.I will entertain an application to join Ms E, once issued, filed and served.
4.The trial remains fixed for 26 June 2023.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J

The trial of this proceeding is fixed for 26 June 2023, a little over a month away.
On 10 May 2023 Mr Vadarlis, the solicitor for the applicant wife applied for…

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 Warin & Warin (No 8)

Details

AGLC: Warin & Warin (No 8) [2023] FedCFamC1F 362
Case: [2023] FedCFamC1F 362
Decision Date

CaseChat Overview and Summary

The case of Warin & Warin (No 8) involved a dispute between Ms Warin and Mr Warin, with other respondents including Mr Stanton and Mr Basfield as trustees in bankruptcy of the bankrupt estate of the respondent husband, Ms Inston, and others. The matter was heard in Division 1 of the Federal Circuit and Family Court of Australia. The primary issues before the court were whether to grant leave to issue subpoenas to three individuals, whether to order disclosure from the husband, and whether to grant leave to join Ms E as a party to the proceeding. These applications were brought late in the proceedings without proper explanation.

The court examined the relevance of the proposed witnesses and the necessity of their evidence. Mr Winsor, a long-time friend and accountant to the husband, was considered relevant due to his role in the husband's business dealings and financial statements. Mr JJ and Mr KK, both associated with companies in which the bankrupt had an interest, were also deemed relevant for their potential evidence regarding the bankrupt's sources of income since his bankruptcy. The court considered the Evidence Act and relevant court rules in determining whether the proposed witnesses could provide relevant evidence.

In granting leave to issue subpoenas to Mr Winsor, Mr JJ, and Mr KK, the court noted that these witnesses could provide relevant evidence concerning the husband's business affairs and the matrimonial pool. The court also ordered disclosure from the husband regarding his retained interest in Warin Nominees Pty Ltd, the "capital funds advance" to LL Pty Ltd or MM Pty Ltd, and any related documents. Lastly, the court ordered that an application to join Ms E as a party would be entertained once it was issued, filed, and served. The trial date was maintained for 26 June 2023.

In summary, the court granted leave to issue subpoenas to three individuals, ordered disclosure from the husband concerning specific financial matters, and allowed for the potential joinder of Ms E as a party, subject to timely application. The trial remained fixed for 26 June 2023, despite the lateness of the applications.

Orders