Aarons & Aarons (No 2)
[2022] FedCFamC1F 331
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aarons & Aarons (No 2) [2022] FedCFamC1F 331
File number(s): MLC 6647 of 2021 Judgment of: WILSON J Date of judgment: 9 May 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – late applications for disclosure and for expert evidence – applications refused. Legislation: Family Law Act 1975 (Cth) s 75(2)
Wills Act 1997 (Vic) s 12
Cases cited: Barns v Barns (2003) 214 CLR 169
Aarons & Aarons [2022] FedCFamC1F 294
Delaforce v Simpson-Cook (2010) 78 NSWLR 483
Hall v Hall (2016) 257 CLR 490
Hudson v Gray (1927) 39 CLR 473
Birmingham v Renfrew (1937) 57 CLR 666
The Juliana (1822) 165 ER 1560
White & Tulloch v White (1995) 19 Fam LR 696Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 9 May 2022 Place: Melbourne Counsel for the Applicant: Mr P. Bick QC with
Mr A. BarbayannisSolicitor for the Applicant: Strongman & Crouch Counsel for the Respondent: Mr B. Geddes QC with
Mr C. NehmySolicitor for the Respondent: Hargreaves Family Lawyers ORDERS
MLC 6647 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AARONS
Applicant
AND: MS AARONS
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
9 MAY 2022
THE COURT ORDERS THAT:
1.The application for the appointment of a single expert to value real property known as E Town Estate is dismissed.
2.The application for a single expert to value real property and improvements of the land known as K Street, Suburb L is dismissed;
3.The application for the production of an unredacted copy of the will of the wife’s late mother is dismissed.
4.The application for the production of an unredacted copy of the wife’s father’s will is dismissed.
5.By noon on 11 May 2022 the parties must bring in minutes to give effect to these reasons.
6.Any affidavit or affidavits on which the husband relies in support of his adjournment application must be filed and served by noon on 11 May 2022.
7.Any affidavits in opposition to the husband’s application for an adjournment must be filed and served by noon on 13 May 2022.
8.The further hearing of this proceeding is adjourned to the commencement of the trial on 17 May 2022 for consideration of whether the trial should, in fact, commence or be adjourned to 8 to 12 August 2022 and, thereafter, 15 to 19 August 2022 or to such further or other day as may be agreed or ordered.
9.The costs of and incidental to today are reserved.
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 the pseudonym Aarons & Aarons is 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 to commence next Monday, 7 May 2022, there being four business days remaining. On 6 May 2022, last Friday, I devoted a day to hearing debate in relation to disclosure issues, as well as an application for orders for the appointment of an expert witness. The urgency of the determination of those issues compels the formulation of reasons that are less comprehensive than might otherwise have been produced. Be that as it may, for the reasons that follow and taking each application advanced on behalf of the husband in the order relied on by his counsel, in my judgment –
(a)the application for the appointment of a single expert to value real property known as E Town Estate is made unacceptably late in this proceeding and is dismissed;
(b)the application for a single expert to value real property and improvements of the land known as K Street, Suburb L is also made unacceptably late so it too is dismissed;
(c)the application for the production of an unredacted copy of the will of the wife’s late mother is dismissed, having regard to the wife’s affidavit to the effect that the wife does not have possession, power or control of such a document; and
(d)the application for the production of an unredacted copy of the wife’s father’s will is also dismissed because the father is still alive and I would speculate in concluding that he and his late wife made mutual wills, which I am unable to do.
Debate on the husband’s application, sealed 26 April 2022, was stood over to 6 May 2022 pursuant to orders made by me on 28 April 2022 in reasons handed down that day.[1] On 6 May 2022, Mr Bick, One of Her Majesty’s Counsel, who appeared with Mr Barbayannis of counsel for the husband informed me that in respect of the husband’s 26 April 2022 application in a proceeding –
(a)paragraph 1(a) was in the process of resolution and was not before the Court;
(b)paragraph 1(b) was likewise not before the Court; and
(c)paragraph 2 was also not before the Court.
[1] Aarons & Aarons [2022] FedCFamC1F 294.
Paragraph 3 raised more problematic issues. Relevantly, the husband persisted in his application for the appointment of a single expert to value the properties comprising E Town Estate (paragraph 3(a)) and the property of K Street, Suburb L (paragraph 3(b)). However, the husband said he no longer sought F Company to be the appointed valuer, as appeared in paragraphs 3(a) and 3(b) of his application sealed 26 April 2022. As to the G Town property mentioned in paragraph 3(c) of his application, Mr Bick QC stated[2] that the parties had agreed on a valuer and that they had done likewise in relation to the property in Suburb M described in paragraph 3(d) of the husband’s application sealed 26 April 2022. Mr Bick QC said no property was relevant to paragraph 3(e) so that issue had fallen away.
[2] T58 L28.
As to paragraph 4, the relevant lease had been produced, so that was no longer an issue.
Paragraph 5 related to overseas assets, which Mr Bick QC said translated to shares in respect of which he said a satisfactory explanation for the disclosure of which had been given.
As to paragraph 6, Mr Bick QC said information would be supplied in a manner satisfactory to the husband so that paragraph was not pressed.
Finally, in relation to paragraph 7 Mr Bick QC reported that his camp had been told that no properties were involved so that issue fell away.
Before considering the specific applications that were debated on 6 May 2022, it is utile to record, at least in prècis form, the contentions advanced on behalf of the husband about the expansive nature of disclosure manifested in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). It was submitted that on the assumption that relevance is established, the breadth of the disclosure obligations (called a “duty”) reposed in rule 6.06(3) was far-reaching. While not submitting that in terms, it was put in substance that rule 6.06(3) revealed an intendment in respect of subordinate legislation that an enabling approach was to be applied towards disclosure and not a restrictive approach. That was all the more in cases in the Major Complex Financial Proceedings List.
There is considerable force in that submission.
Although not in the sequence set out in the husband’s application sealed on 26 April 2022, the main emphasis of debate before me on 6 May 2022 related to the husband’s application for an unredacted copy of the wife’s late mother’s will. To that, I first turn.
Doing the best I can to encapsulate the sophisticated arguments advanced on behalf of the husband, the matters set out immediately below were urged in support of his application for that document. They were –
(a)the wife’s family was extremely close and the wife was likely to be privy to confidential discussions on business matters as well as financial and estate planning matters;
(b)upon the death of the wife’s late mother, the wife’s share of the H Company family assets was 20% and on the death of the wife’s 98 year old father, the wife’s share will increase to 25%;
(c)pursuant to a collection of family arrangements, the arrangements for the distribution of family assets cannot be changed;[3]
(d)pursuant to a deed made 25 August 2021, among other persons, the wife has agreed to restructure the H Company Group upon the death of the wife’s 98 year old father, whose present health is tolerably good;
(e)it is likely, on the balance of probabilities, that the wife’s parents have made wills in mirror terms to one another; and
(f)clause 2 of the wife’s mother’s 2014 will gives rise to the inference that the wife’s father’s will is in identical terms to the terms of the wife’s mother’s 2014 will.
[3] T8 L37.
It was also put that as at, at least 20 December 2017, the wife’s father informed his children that the residual aspects of his estate and that of his wife would be divided equally between the wife and her siblings. Mr Bick submitted that aside of whatever consequences at law flow from the wife’s parents’ testamentary wishes, disclosure should be given of the wife’s late mother’s latest will. In support of the submissions in relation to wills, Mr Bick QC relied on the observations of the High Court in Birmingham v Renfrew,[4] as well as the observations in Hudson v Gray,[5] which pre-dated Birmingham v Renfrew.
[4] (1937) 57 CLR 666.
[5] (1927) 39 CLR 473.
The consequence of there being mutual wills, properly so called, was, as Mr Bick submitted, an agreement capable of revocation on notice during the lives of the testator and testatrix or either of them. Once the first dies, then the survivor is bound not to revoke his or her will and if the survivor purports to revoke his or her will, then equity will enforce the obligations under the agreement by attaching a constructive trust so as to give effect to the provisions of the mutual will.
For a more recent illustration of the application of the principles in Birmingham v Renfrew, Mr Bick QC relied on the observations of the High Court in Barns v Barns,[6] especially in the joint judgment of Gummow and Hayne JJ.[7] It was put that the wife expects to receive from the estate of her father when he dies something to be taken into account when assessing s 75(2) factors. The Court of Appeal and the Supreme Court of New South Wales passed upon this issue in Delaforce v Simpson-Cook.[8] Perfectly correctly, Mr Bick brought to my attention the decision in White & Tulloch v White[9] in which it was held that a prospective inheritance is not a financial resource for the purposes of s 75(2) of the Family Law Act.
[6] (2003) 214 CLR 169.
[7] Ibid 199.
[8] (2010) 78 NSWLR 483.
[9] (1995) 19 Fam LR 696.
That decision was handed down in 1995. It pre-dated the considerations given to the expression “financial resource” in the High Court’s decision in Hall v Hall[10] in which the plurality held that a financial resource must involve something more than an expectation of benevolence on the part of another. Mr Bick submitted that assuming a mutual will exists which has a party to a s 79 application as a beneficiary is something considerably more than an expectation of benevolence as “it is set in stone”.
[10] (2016) 257 CLR 490.
On behalf of the wife, Mr Geddes QC, who appeared with Mr Nehmy of counsel, opposed the application for the production of the wife’s late mother’s will. He submitted, in essence, as follows –
(a)the wife had consistently denied and had sworn to not having possession, power or control of any copy of the will of the wife’s late mother as sought by the husband;
(b)any order made requiring the wife to produce the alleged mutual will that the husband apprehended the wife to possess would not result in the production of the document, as the wife physically does not have such a document; and
(c)any issue about findings about the parties’ compliance with their duties of disclosure is a triable issue that could not be dealt with on this application.
In short, however legally interesting the mutual will argument may be, on behalf of the wife it was squarely put that she does not have the documents sought. As a secondary argument, Mr Geddes QC submitted that the appellation “mutual wills” was a matter of characterisation by the Court and that the wife’s late mother, as most testatrixes are, remained at liberty to make whatever will she chooses right up to the moment of her passing. To my mind, having regard to the wife’s denial that she has a copy of the version of her late mother’s will as sought by the husband, I am unable to go beyond that denial. Her denial is determinative of the matter on this application. Whether the position changes after cross-examination remains to be seen. But for present purposes I dismiss the husband’s application in respect of the wife’s late mother’s will.
So far as the application for the wife’s father’s most current will was concerned, the wife’s father is still alive. I am unable to say whether he made a mutual will, as suggest his late wife did, nor at this point in time, in any event, can I make any such observation. Probate of her estate has not been granted yet. It is conceivable, no matter how unlikely, that the wife’s father may execute yet a further will. No evidence was adduced about his testamentary capacity.
Counsel for the wife argued that a testator may revoke his or her will by any of the means canvassed by s 12 of the Wills Act 1997 (Vic). They argued that any finding about the existence or otherwise of mutual wills can only be determined after the trial, when all circumstances are explored in length. They urged me to adopt the observations in The Juliana[11] that equity examines every connected circumstance. On this application, I am minded to proceed on the basis that the wife’s father’s will is ambulatory. He may alter it at any time until the moment of his passing and the fact of his will and any will of his late wife being mutual must wait for determination following a trial. I dismiss the husband’s application for the production of the late father’s will.
[11] (1822) 165 ER 1560, 1567.
The next application related to a last-minute valuation of the land and buildings in the J Region of the E Town property. The wife does not own that real estate. Two important issues arose in relation to that application. First, Mr Bick QC informed all present at the hearing of the penultimate appearance in this litigation that the case would go on to trial, even if the application he pressed were to be refused. Second, as was observed in my most recent decision in this litigation,[12] the application now made is very late and if granted the mechanism under the rules relating to expert evidence will not play out in the way the rules required.
[12] Aarons & Aarons [2022] FedCFamC1F 294.
During debate, I put to Mr Bick that the trial will be over by the time the mechanism prescribed by the rules runs its course. It must not be overlooked that the wife is permitted to participate in the regime set out under the rules by, for example, formulating questions to go to the expert prior to the expert giving evidence. If I were to accede to the husband’s application, that process would likely unfold while the trial were in full flight in this court, a most undesirable set of circumstances. To that must be added the undesirability of counsel opening their respective cases when the totality of expert evidence is not to hand. I find it difficult to see how the need to value the particular parcel of land was not known well prior to the eve of the trial.
The lis pendens of this litigation has been on foot in the Supreme Court of Victoria as well as in this Court for many months. Had the importance of valuing the J Region property been as important as it is now said to be, then it is almost beyond imagination that the matter would not have been agitated before me by now. In my view, it would be singularly unfair to the wife in the proper management of this case on its passage to trial to jeopardise its orderly commencement by acceding at this point, four business days ahead of the trial, to the husband’s application to value the E Town property. I refuse the application.
Next, the husband sought orders for the valuation of real estate in Suburb L. The same observations apply to that application as were made concerning the lateness of the application in relation to the J Region property. In my view, the application is made far too late. I dismiss it.
I direct the parties by noon on Wednesday to bring in minutes that give effect to these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 9 May 2022
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