Adarina and Adarina and Anor

[2008] FamCA 882

FAMILY COURT OF AUSTRALIA

ADARINA & ADARINA AND ANOR [2008] FamCA 882

FAMILY LAW – PROPERTY – Procedural issues from 1^st day of trial pursuant to Division 12A

Family Law Act 1975 (Cth)

APPLICANT: Mr Adarina

RESPONDENT: Mrs Adarina

INTERVENOR: Mr D Adarina

FILE NUMBER: ADF 1542 of 2004

DATE DELIVERED: 4 August 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 4 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hicks

SOLICITOR FOR THE APPLICANT: Scales & Partners

COUNSEL FOR THE RESPONDENT: Mr White

SOLICITOR FOR THE RESPONDENT: Belchamber Legal

COUNSEL FOR THE INTERVENOR: In person

ORDERS

1. By consent that the wife have leave to put to the single expert G Valuers a series of questions in relation to the value of the S Road property, such questions to be in writing and a copy of the list of questions to be served upon the husband’s solicitors and Mr Adarina and upon condition that the list of questions be put to the single expert within fourteen [14] days of the date hereof and the single expert provide his answers in writing within a further twenty-one [21] days.

2. By consent that the husband and the wife equally share the cost of the single expert in answering the questions referred to in paragraph 1 hereof.

3. By consent that Mr J of Y & Co be appointed as the single expert to value the company Adarina Proprietary Limited upon the following conditions:

   a.That within fourteen days of the date hereof a joint letter of instruction from the parties, including the third party be forwarded to Mr J.

   b.That his valuation report be filed and served by 4:00pm on 17 September 2008;

   c.That the cost of the valuation be borne equally between the three parties SAVE AND EXCEPT that in the event that the valuation accords with the husband’s case, namely that the value of the company is the value of its plant, equipment and cash assets the entire cost of the valuation is to be borne by the wife;

4. By consent that by 4:00pm on 11 September 2008 each party including the third party file and serve an updated affidavit of evidence in chief.

5. By consent of the husband and the wife that Mr D of M & Co be appointed as a single expert to provide a report as to the most tax effective treatment of the parties respective proposals as to the future of Adarina Proprietary Limited and the disposition of that company and such report be filed and served by 4:00pm on 17 September 2008.

6. By consent that the cost of the report of Mr D be borne equally by the husband and the wife.

7. That within fourteen [14] days of the date hereof the wife file and serve a Further Amended Response setting out the Final Orders that she now seeks.

8. That the trial resume part-heard at 9:30am on 25 September 2008.

9. That the husband’s costs of and incidental to the Application in a Case filed by the wife on 18 July 2008 be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Adarina & Adarina is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1542 of 2004

MR ADARINA

Applicant

And

MRS ADARINA

Respondent

And

MR D ADARINA

Intervenor

EX TEMPORE REASONS

1. This matter has commenced before me today as the first day of the trial. It is not a matter which is being heard pursuant to Division 12A of the Family Law Act 1975 because the parties have not consented to that process but, given the new Case Management Pathway which this Court now applies, the Court brings across as many of the aspects of the Less Adversarial process as it can to matters that are not being dealt with under Division 12A..

2. Initially, though, I had before me an Application in a Case filed by the wife on 18 July 2008, seeking orders that a single expert be appointed to value the company, Adarina Pty Ltd, that leave be given for the wife to put a series of questions to the single expert, Mr P, and to adduce adversarial evidence in relation to the property that Mr P valued.  Additionally, the orders sought were that the trial date - namely, today - be vacated. The husband filed a Response on 1 August 2008 seeking that that application be dismissed. 

3. I have heard submissions in relation to the application, and I confirm that I am not prepared to vacate this trial date.  In the scheme of things I can accommodate the need, for example, to extend time for questions to be put to the single expert because, in the normal course of events, following the first day of the trial, there would be a time period during which the parties would be preparing their affidavits and obtaining any further valuations. 

4. Indeed, although the husband sought that the application be dismissed, he does not oppose extending the time for questions to be put to the single expert, and thus that is by consent.  In terms of a time frame for that, it seems a couple of weeks are needed to put the questions to the single expert and then, under the Family Law Rules, the expert has three weeks to respond.  That takes us up to five weeks.  Then I need to allow some time for the answers of the expert to be considered and each party to determine their position in relation to that.

5. In terms of the application for leave to adduce adversarial evidence, I have indicated that I am not prepared to make such an order at this point.  I am not sure if Mr White ultimately retreated from that position or not but at least at one point he indicated he saw the - I will call it wisdom for the moment, of what I was putting in terms of taking it step by step. 

6. What I was at pains to indicate to Mr White - and it is on the transcript, of course - is that although I am prepared to allow questions to be put to the expert witness, because that is by consent, I am not giving any indication as to whether I will look favourably upon the application to adduce adversarial evidence.  It depends, clearly, on the circumstances that apply at the time and in particular, the answers to the questions, what everyone makes of them, and what I make of them. 

7. In terms of the application for a single expert to be appointed to value the company, Adarina Pty Ltd, that has been opposed, as I say, by the husband.  The reason for that opposition is, in summary, that up until quite recently - indeed only a matter of week or two - this case was proceeding on the basis that that particular company was to be wound up.  Indeed that is quite apparent from the documents before me and I need go no further than the wife's own Affidavit filed in January 2007 and her Amended Response filed in November 2007, which has not been further amended and which therefore sets out the current orders that she seeks on a final basis.  That amended response includes an application for an order that the company be wound up.   

8. However the wife appears to have changed her mind about that, although there is no formal amendment yet made of the final orders sought.  I will not repeat the comments that I have made about that, but the simple fact is that, I am prepared to allow an eight-week time frame to also be used for the purposes of obtaining a valuation from a single expert of that company, but on the basis, firstly, that such valuation is obtained within that time period.  Secondly, and perhaps most importantly, in the event that the valuation is such that it accords with the husband's case, which is that the company has no value beyond its plant and equipment and its cash asset, then the entire cost of that valuation is to be borne by the wife.

9. The wife has changed her solicitors on a frequent basis over the last 12 months, and there was a period of time when she was acting in person.  Her current solicitors have only been instructed in the last three or four weeks, and I appreciate entirely the limitations and the difficulties that that creates.  However, that does not absolve the wife from taking responsibility for her own matter, and she cannot hide behind the fact that she has chosen to change her solicitors, for whatever reason, good, bad or otherwise.  The wife cannot simply say, "Well, I have changed my solicitors.  They need time to get on top of this matter.  They're giving me different advice than I had from my previous solicitors."  She has had ample time to prepare her case, to get her act together and to file the appropriate documents setting out the orders that she seeks.  It seems at this stage she still does not know what she is wanting in this case, but that has to change rapidly because we have now commenced the trial, and I will brook no delay in this matter as a result of that circumstance.

10. On the basis that the order that I propose does not prejudice the applicant - and Mr Hicks has confirmed it does not - nor Mr D Adarina, the third party, then that is the order I propose to make in relation to that particular application. 

11. Turning to the trial proper, this is a matter which has a long history.  There have been a number of false starts and attempts to have a trial but for various reasons that has not happened.  In that process the parties have each filed affidavits of evidence-in-chief at different times.  I have had a look at those affidavits.  As I commented, I consider that there is irrelevant material in all of those affidavits, but I am not going to spend time in going through those affidavits and sorting that issue out now. 

12. That is a matter that can be left for the trial or indeed the conclusion hearing in the usual way, namely, any objections to affidavit material will have to be sorted out before we start the taking of evidence.  What that does require is each party to update their affidavits, and I will give leave for that to occur, again within that same eight-week time frame which I have referred to earlier.

13. In terms of Financial Statements, the other party and the husband have recently filed Financial Statements.  The wife has not, but in her Questionnaire she tells me that there are no significant changes to her Financial Statement, although, as I remarked, she then went on and identified three changes.  I will not make any further order about that.

14. In terms of witnesses, the husband of course will give evidence, the wife will give evidence and Mr D Adarina will give evidence.  There is the single expert witness, Mr P, and it seems he will be certainly required for cross-examination.  As I said, the wife has foreshadowed a possible application to lead adversarial evidence in relation to that valuation, but I am not going to address that at the moment.

15. Separate to that there is a Mr D, who is the accountant instructed by the parties to undertake the accounting work for the companies, the business and the partnerships, although Mr D Adarina tells me that he no longer attends to his accounting or taxation work.

16. Earlier this year a letter was provided to Mr D by the husband and the wife, jointly instructing him to undertake certain work and advise in relation to various scenarios in terms of, specifically, the impact of the differing orders sought by the parties, both from a taxation point of view and their financial position generally.

17. Mr Hicks wants to in effect resurrect that situation and he wants Mr D to be again appointed as the single expert, to provide a report as to the financial impact of the various possible scenarios that arise as a result of the orders that each party seeks.  The wife agrees with that but Mr D Adarina does not.  He puts to me that he does not trust Mr D any more, that he is suspicious of him and he does not want him to undertake this task.  I appreciate Mr D Adarina might have that particular view, but, given the husband and the wife are the primary parties in these proceedings and that they are comfortable to use Mr D, I propose to appoint him as the single expert to undertake this task, but I will not be requiring Mr D Adarina to contribute to the cost of Mr D; that will be a cost that will be shared by the husband and the wife.

18. That said, it is now a matter of putting orders in place to ensure that this matter can proceed, and I am proposing to have a continuation hearing on 25 September 2008 at 9.30 am.

I certify that the preceding 18 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 4 August 2008.

Associate