Winter and Winter - [2010] FamCA 282

FAMILY COURT OF AUSTRALIA

WINTER & WINTER

[2010] FamCA 282

FAMILY LAW – CONTEMPT – PROPERTY – Family Court of Australia order freezing assets – Assets offered as security in Supreme Court of Queensland proceedings – Whether such was a dealing with the assets contrary to the order of this Court – Meaning of “in any way dealing with” – Existence of the order of this Court disclosed to Supreme Court – Contempt application dismissed

Family Law Act 1975 (Cth) s 112AP

APPLICANT:

Ms Winter

RESPONDENT:

Mr Winter

FILE NUMBER:

BRC

3781

2008

DATE DELIVERED:

5 March 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O’Reilly J

HEARING DATE:

5 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McConaghy
SOLICITOR FOR THE APPLICANT	N/A (Direct brief)

COUNSEL FOR THE RESPONDENT:

Mr Blaxland

SOLICITOR FOR THE RESPONDENT:

Wantrup & Associates

Orders

IT IS ORDERED

The wife’s contempt application filed on 27 November 2009 is dismissed.
The wife’s application in a case for the appointment of a receiver and other relief filed on 1 October 2009 is dismissed
The wife’s contempt application filed on 28 January 2010 is dismissed.
There be no order as to costs in relation to any of those applications.

AND IT IS FURTHER ORDERED

The wife’s contravention application filed 27 November 2009 against the first respondent concerning disclosure be listed for further hearing as a part heard matter at 9.30am on Thursday 18 March 2010 before the Honourable Justice O’Reilly.
The wife’s contravention application filed 27 November 2009 against the third respondent concerning disclosure be listed for further hearing as a part heard matter at 9.30am on Thursday 18 March 2010 before the Honourable Justice O’Reilly.

AND IT IS FURTHER ORDERED

The wife by her legal representatives inspect the documents disclosed by the husband and the third to sixth respondents in the list of documents filed 25 February 2010 between 9.00am and 5.00pm on Monday 8 March 2010 at the offices of Bennett and Philp Lawyers, Brisbane.
The wife by her legal representatives is to be permitted by Bennett and Philp Lawyers to take copies of such documents as may be requested at the cost of 20 cents per page.
The wife’s costs be set out in an invoice to the wife to be prepared by Bennett and Philp Lawyers and be paid by her within seven days after her receipt of the invoice.
Registrar Green’s orders 3, 5 and 6 made on 12 January 2010 are vacated.
The parties use their best endeavours to agree and prepare an indexed and paginated bundle of core documents by 4.00pm on Friday 12 March 2010.
The wife file and serve:
(a)affidavits in chief of herself and her witnesses including any valuation witnesses;
(b)a list of any existing filed affidavits on which she intends to rely; and
(c)a current financial statement
by 4.00pm on Wednesday 17 March 2010.
The husband file and serve:
(a)affidavits in chief of himself and his witnesses including any valuation witnesses and including in…

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.

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Details

Case: [2010] FamCA 282
Decision Date: 5 March 2010

CaseChat Overview and Summary

This matter came before O’Reilly J concerning applications made by the wife. The wife had filed applications alleging contempt against the respondents and seeking the appointment of a receiver. The court was also required to consider contravention applications made by the wife concerning disclosure obligations.

The legal issues before the court included whether the wife's applications for contempt and for the appointment of a receiver should be dismissed, and the appropriate orders to be made regarding the wife's contravention applications concerning disclosure. The court also had to determine the future procedural steps for the litigation, including the inspection and copying of documents, the filing of affidavits and financial statements by both parties, and the setting of a trial date.

O’Reilly J dismissed the wife's contempt applications and her application for the appointment of a receiver. The court vacated certain previous orders made by Registrar Green and made new orders regarding the inspection and copying of documents disclosed by the husband and third to sixth respondents. The court also set strict timelines for the parties to file and serve affidavits, financial statements, and lists of relied-upon affidavits, and directed the parties to use their best endeavours to prepare an indexed bundle of core documents. The trial was listed to commence on 12 April 2010 for eight days, with a compliance check scheduled beforehand.

Orders

Orders of the court

IT IS ORDERED

The wife’s contempt application filed on 27 November 2009 is dismissed.

The wife’s application in a case for the appointment of a receiver and other relief filed on 1 October 2009 is dismissed

The wife’s contempt application filed on 28 January 2010 is dismissed.

There be no order as to costs in relation to any of those applications.

AND IT IS FURTHER ORDERED

The wife’s contravention application filed 27 November 2009 against the first respondent concerning disclosure be listed for further hearing as a part heard matter at 9.30am on Thursday 18 March 2010 before the Honourable Justice O’Reilly.

The wife’s contravention application filed 27 November 2009 against the third respondent concerning disclosure be listed for further hearing as a part heard matter at 9.30am on Thursday 18 March 2010 before the Honourable Justice O’Reilly.

AND IT IS FURTHER ORDERED

The wife by her legal representatives inspect the documents disclosed by the husband and the third to sixth respondents in the list of documents filed 25 February 2010 between 9.00am and 5.00pm on Monday 8 March 2010 at the offices of Bennett and Philp Lawyers, Brisbane.

The wife by her legal representatives is to be permitted by Bennett and Philp Lawyers to take copies of such documents as may be requested at the cost of 20 cents per page.

The wife’s costs be set out in an invoice to the wife to be prepared by Bennett and Philp Lawyers and be paid by her within seven days after her receipt of the invoice.

10.

Registrar Green’s orders 3, 5 and 6 made on 12 January 2010 are vacated.

11.

The parties use their best endeavours to agree and prepare an indexed and paginated bundle of core documents by 4.00pm on Friday 12 March 2010.

12.

The wife file and serve:

(a) affidavits in chief of herself and her witnesses including any valuation witnesses;

(b) a list of any existing filed affidavits on which she intends to rely; and

by 4.00pm on Wednesday 17 March 2010.

13.

The husband file and serve:

(a) affidavits in chief of himself and his witnesses including any valuation witnesses and including in response to the wife’s affidavits;

(b) a list of any existing filed affidavits on which he intends to rely; and

by 4.00pm on Monday 22 March 2010.

14.

The wife file and serve any affidavits strictly in response to the husband’s material by 4.00pm Thursday 25 March 2010.

15.

The parties must notify each other and, on notice to each other, the Associate by email as soon as practicable if at any stage either considers that the trial of the matter may proceed beyond 8 days.

16.

The parties, on notice to each other, have liberty to apply to the Associate by email if further or other procedural orders are required.

NOTATIONS

Orders 1, 2, 4 and 7-11 of the orders made by Registrar Green on 12 January 2010 remain in force.

The matter is listed for a compliance check before Registrar Kane at 12.20pm on 30 March 2010.

The trial is listed to commence at 10.00am on 12 April 2010 for 8 days.

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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