Alexander & Thorne
[2023] FedCFamC2F 1714
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Alexander & Thorne [2023] FedCFamC2F 1714
File number(s): SYC 1693 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 6 December 2023 Catchwords: FAMILY LAW – PROCEDURAL -Ex-Tempore Reasons for Judgment – where the matter was listed on short notice due to the respondent Husband’s non-signing of a joint letter of instruction to the Single expert for the preparation of a report relating to the husband’s interest in various financial entities – where orders for the provision of such report were made over 2 years ago by this Court – where the husband seeks that the valuation date of such entities be as at late 2021 – where it appears that the husband has caused significant delay in the lack of provision of documents and information to the Single Expert – orders made requiring the husband to provide specific documents to the Single Expert and for the joint letter of instruction as proposed by the wife to be sent to the Single Expert without the signature of the husband. Division: Division 2 Family Law Number of paragraphs: 15 Date of hearing: 6 December 2023 Place: Sydney Solicitor for the Applicant: Ms Potter Solicitor for the Respondent: Litigant in Person ORDERS
SYC 1693 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ALEXANDER
Applicant
AND: MR THORNE
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The orders of 16 October 2023, including the orders listing the matter for hearing for 3 days in the Sydney Rolling List commencing on 11 March 2024, are vacated.
2.Within 14 days the husband is to do all things necessary to have prepared the statutory accounts including Balance Sheets, Profit and Loss Statements and Loan Account Ledgers for each financial year up to and including 30 June 2023 for the Thorne Family Trust.
3.The Wife is permitted to send the letter of instructions marked as Exhibit A to the single joint expert, Ms B of C Company (“the single expert”) without the Respondent’s signature, together with a sealed copy of these Orders.
4.The husband is to provide to the single expert any information and documents requested within 14 days of such request.
5.Liberty is granted to the wife to relist the matter with respect to the issue of the preparation of the single expert’s valuation only on 7 days written notice. The court notes that such relisting will require the filing of the appropriate application and affidavit in support.
6.The wife’s costs of and incidental to the Application in a Proceeding filed on 1 December 2023 are reserved.
7.The Application in a Proceeding filed by the wife on 1 December 2023 and the Response thereto filed on 5 December 2023 is otherwise dismissed.
8.The matter is otherwise referred to the Case Management Judge for the allocation of a docket Judge.
9.The matter will be listed for further case management on a date to be advised by the docket Judge.
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
JUDGE MURDOCH
These are property proceedings commenced by the wife on 13 March 2020. The matter is currently listed in the March 2024 rolling list in this registry.
Orders were made by Judge Smith of this court (as he then was) on 15 May 2021 for the parties to do all acts and things to instruct Ms B of D Company to prepare a single expert report in relation to the value of nine financial entities. Pursuant to such orders the parties were to forward to Ms B a joint letter of instruction within seven days. Further, the respondent husband was to provide all documents required of him by Ms B in a timely manner and provide all information requested of him. The parties are to be jointly responsible for the costs associated with the Single Expert.
The matter has been listed before me today in circumstances where this matter is listed before me in the rolling list in 2024. The wife presses for orders today as sought in her Application in a Proceeding filed on 4 December 2023. She has filed an Affidavit in support of the relief sought by her.
The applicant deposes that a joint letter of instruction was sent to Ms B in mid-2021 for the husband’s interest in the named entities to be valued as at 30 June 2021. The applicant deposes that from the time this letter was forwarded until the provision of an indicative valuation dated mid-2023, there have been ongoing difficulties in obtaining documentation and information as required by the husband.
In mid-2022 it was agreed between the parties that the applicable date for the valuation of the financial entities would be late 2021.
The wife deposes that in light of the significant delays in the provision of the valuation reports the parties agreed in mid-2023 that a “short form schedule only” valuation report be prepared, based on the information and documents that had been provided by that date to the valuer.
A report was released by Ms B in mid-2023. In such report the wife deposes that Ms B noted that during the engagement a further five entities relating to the husband were discovered; being:
·A superannuation fund;
·Two trusts;
·The E Ltd; and
·The F Holding Trust.
It appears these entities were not disclosed to the wife.
The single expert further recorded that the lack of transparency around the dealings of the Thorne Family Trust has caused significant limitations to her ability to form properly concluded valuations. She states that, “given the lack of transparency I am simply unable to provide properly concluded valuations of the overall financial service business operations headed by the husband.”
The husband has filed a response to the Application in a Proceeding on 5 December 2023 and an affidavit filed in support thereof. Such response seeks a differing version of a letter of instruction to be forwarded to the Single Expert. That letter of instruction appears to have the valuations occurring as at late 2021 rather than updated valuations. The husband further seeks in his response an order that the proceeds of sale of the Suburb G property be disbursed equally after selling costs and mortgage payout.
The matter was listed today on short notice purely with respect to the wife’s application to have a letter forwarded to the Single Expert so as the parties could comply with orders made by this court some two years ago. There is no evidence in the husband’s affidavit to support the relief he seeks and in those circumstances Order 3 as sought in the response filed on 5 December 2023 is dismissed.
I have heard the submissions from both of the parties. I did not need to hear much from the wife. It is clear in this matter that the valuations need to be the most updated valuation as is possible so that the court can have evidence as to the value of the parties’ interests in property as at the hearing of the matter. A historical valuation based in late 2021 is of little assistance.
I am satisfied that the orders should be made as sought by the applicant wife.
In circumstances where it appears that the husband has not disclosed his entitlement or documents with respect to Trusts that he is a beneficiary of, and where it appears the Single Expert is of the view that she has not been provided the required the documents relating to the Thorne Family Trust, I am satisfied that I should make further orders and directions with respect to that provision and for the husband to be required to do all the things to prepare the statutory accounts for the said Trust.
Both parties’ consent to the final hearing of the matter in the rolling list to be vacated. I therefore make the following orders.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Murdoch. Associate:
Dated: 6 December 2023
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