Altoviti & Altoviti
[2025] FedCFamC1F 15
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Altoviti & Altoviti [2025] FedCFamC1F 15
File number: SYC 6340 of 2022 Judgment of: SCHONELL J Date of judgment: 20 January 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where neither parties had complied with directions for the preparation of the hearing – Where no valuation of real estate assets has ever been filed with the Court – Where no valuations of corporate entities controlled by the parties has been undertaken – Where each party seeks to blame the other for the non-compliance with Court orders – Where the wife’s application and the husband’s response are dismissed. Legislation: Family Law Act 1975 (Cth) s 95 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 19 January 2025 – 20 January 2025 Place: Sydney Counsel for the Applicant: Mr Steward on 19 January 2025, litigant in person on 20 January 2025 Solicitor for the Applicant: DPH Lawyers The Respondent: Litigant in person ORDERS
SYC 6340 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALTOVITI
Applicant
AND: MR ALTOVITI
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
20 JANUARY 2025
THE COURT NOTES THAT Mr Steward, counsel for the applicant appears as a courtesy to the court.
AND THE COURT ORDERS THAT:
1.Leave is granted to Mr Steward of counsel to make an oral application to withdraw.
2.Leave is granted to Mr Steward of counsel to withdraw.
AND THE COURT LATER FURTHER ORDERS THAT:
3.The wife’s Initiating Application as amended on 29 August 2023 and the husband’s Response as amended on 15 November 2022 are dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Altoviti & Altoviti has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
The parties are engaged in Pt VIII proceedings first commenced by the wife on 8 September 2022 in the Federal Circuit and Family Court of Australia.
On 5 September 2023, the matter was transferred by a judge of Division 2 of the Federal Circuit and Family Court of Australia to this court. On the transfer, that judge recorded the following:
1.By consent the matter is transferred to Division 1 of the Federal Circuit and Family Court of Australia, Sydney Registry noting that the following criteria are identified with respect to that transfer:
(a)The matter is a property matter only.
(b)The parties join in issue with respect to almost every issue this Court will need to make factual findings about on a final basis.
(c)Each of the parties assert that their contributions were made more onerous as a result of the conduct of the other party.
(d)There is significant issue as to the value and liabilities of five corporate entities including three unit trusts and one family trust.
(e)There is significant dispute as to the Husband’s asserted application of funds subsequent to the parties’ separation.
(f)It is estimated that the total assert pool is approximately $6 million net.
(g)The Wife anticipates filing an interim application seeking the appointment of a forensic accountant and injunctive orders restraining the Husband from further incurring liabilities.
(h)There is a significant witness list being seven witnesses on behalf of the Applicant including herself and five witnesses on behalf of the Respondent including himself. The witness list incorporates at least one expert and four treating medical practitioners.
2.The matter is referred to the National Assessment Team for consideration of the listing before a Judge of Division 1 AND IT IS NOTED THAT the parties will be contacted directly by the National Assessment Team confirming the relisting of proceedings and the next listing date.
It is unclear whether any forensic accountant has ever been engaged, or if they have been engaged, have ever completed a report.
On 15 September 2023, a judge of Division 1 of this Court made the following orders:
2.That within 14 days of the date of these orders, the wife provide to the husband the names of three suitably qualified experts to value the following entities:
(a)[B] Corporation Pty Limited
(b)[B] Unit Trust
(c)[C] Development Pty Limited
(d)[C] Developments Unit Trust
(e)[B] Property Investments Pty Limited
(f)[B] Constructions Pty Limited
(g)[E] Pty Limited
(h)[Altoviti] Family Trust
(i)[D] Unit Trust (collectively “the corporate entities”).
3.That within 14 days of the provision of the names in Order 2, the husband shall choose the person to be instructed as single expert to value the entities and the parties shall forthwith instruct the single expert to prepare the valuation of the entities and to carry out any other enquiries sought by either of them.
4.That the costs of the single expert, in the first instance, be met equally by each party.
5.That within 14 days the husband provide to the wife’s solicitors a copy of the testamentary disposition of his late father and a certified English translation of that document.
6.That within 30 days of the date of these orders, the wife nominate three suitably qualified experts to value the properties described as [F Street], [City G], [Country H] and at [J Village], [Country H] (“the [Country H] properties”) and it is noted that separate experts may be required for each property.
7.That within 14 days of the provision of the names in Order 6, the husband shall choose the person or persons to be instructed as single expert to value the [Country H] properties and the parties shall forthwith instruct the single expert or experts to prepare the valuation of the [Country H] properties.
8.That within 14 days the husband provide to the wife copies of the depreciation schedules for the past three financial years of each of the corporate entities.
9.That within 14 days the husband provide to the wife the names of three suitable qualified experts to value the [chattels] (“the chattels”) owned by the corporate entities.
10.That within 14 days of the provision of the names in Order 9, the wife shall choose the person or persons to be instructed as single expert to value the chattels and the parties shall forthwith instruct the single expert or experts to prepare the valuation of the chattels.
11.That this matter is listed for directions before the Honourable Justice Schonell at 9.30am on 15 December 2023.
The matter came before me on 15 December 2023, on which date I made orders for the appointment of a valuer in relation to property in Country H. In addition, I made orders for the parties to file their affidavits by 22 March 2024.
On that date, I also made an order to the following effect:
4.I list the matter for an in-person mention before me at 9.30 am on Friday, 12 April 2024. In the event the parties have complied with the directions for the filing of affidavits then the court will allocate hearing dates.
The parties appeared before me on 17 April 2024 represented by a solicitor on behalf of the wife and counsel on behalf of the husband. On that occasion, I noted that the parties advised that the matter was substantially ready for the allocation of hearing dates and the matter would take six days.
Accordingly, I allocated the parties six days to commence 24 June 2024. The Court was subsequently advised that the dates were not suitable to the wife’s treating psychiatrist and the Court thereafter allocated the first set of available dates, being dates commencing in January 2025.
On 15 April 2024, I also made directions to prepare the matter for hearing. The directions are as follows:
4.The Applicant shall not later than 28 days prior to the trial date serve upon the Respondent a joint draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:
a.the Respondent shall within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable)
b.wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy
c.upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values and a final, settled version of the joint balance sheet shall be filed not later than 7 days prior to the trial date.
…
6. Each party shall, not later than 28 days prior to the trial date:
a.notify the other party in writing of any objection to any material in any affidavit filed by the other party
b.specify the paragraph or part of the paragraph objected to and
c.detail the grounds of the objection.
The other party shall reply to the objections in writing within 7 days.
The parties before the Trial shall confer in relation to any objections and provide to the Court not later than 7 days prior to the trial date a list setting out:
a.the agreed deletions from each affidavit and
b.the objections to be argued on the hearing date and the ground for the objections.
7.Not later than 14 days prior to the trial date, each party is to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
a.a list of the material relied upon
b.a brief chronology listing significant events that are relevant to the issues to be determined by the Court
c.in a parenting case, a summary of contentions as to s 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought
d.in a property case:
•contributions claimed or contended for and the percentage-based adjustment on contributions contended for
•relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for and
•any further factors relevant to determining a ‘just and equitable’ division of property.
8.Not later than 7 days prior to the trial date the parties are to confer and thereafter forward to my Associate a joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account.
9.Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision what that party contends to be the issues in the proceedings.
10.Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision the factual findings that party will contend should be made by the Court and in relation to each factual finding there is to be referenced the paragraph number in the Affidavit and/or a precise reference to the document in the Annexures or Exhibits that supports the making of the factual finding.
11.Not later than 48 hours prior to the trial date the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time including submissions.
(Headings omitted)
Not a single one of those directions has been complied with by either the wife or the husband.
The wife’s affidavit filed 7 April 2024 records the following:
29.The [K Street], [Suburb Q], [Suburb L] and 2 [Suburb M] properties are the subject of Single Expert valuations which are to be updated.
No single expert valuations have ever been filed with the Court.
The husband’s affidavit filed 5 April 2024 states:
111.The Single Expert Report prepared by Mr [N] contained no comparison properties or reference to any body of opinion upon which his view was based. It does not comply with Rule 7.22 of the Federal Circuit and Family Court Rules (2021).
112.On 7 March 2024 , my lawyers sent an email to Mr [N] seeking he provide his registration number evidencing his registration and certification and he is now asking for more money to provide such evidence which should have been included in his report.
113.[Ms Altoviti's] legal representatives wrote to Mr [N] seeking that he not respond to our correspondence.
114.On 26 March 2024, my lawyers sent a letter to Mr [N] containing a number of questions.
115.On 26 March 2024, my lawyers sent a letter to Mr [O], treasurer of [P Authority] seeking that he prepare a shadow valuation of the [Country H] properties. Mr [O] is not known to me and is an independent valuer. I am still waiting to receive his report.
116.Once I receive Mr [O] ' s report, I anticipate I will be filing an Application in a Proceeding seeking to rely on same in these proceedings.
No such application has ever been filed, nor has any report been filed.
The husband then said the following:
117.[Ms Altoviti] and I are still waiting to receive the business valuation. My accountant is in the process of preparing interim returns for the entities, to be provided to the valuer upon their completion.
As I remarked earlier, no valuation has been filed. I am not even entirely confident that a valuer has even been engaged by the parties.
The parties are in default of every direction made to prepare this matter for hearing.
On 10 October 2024, the husband’s solicitors filed a Notice of Ceasing to Act. Since that date, the husband has represented himself.
On Friday 17 January 2025, being the first day of the six days of hearing, the wife appeared represented by solicitor and counsel. The husband appeared unrepresented.
The wife’s counsel advised that the wife’s previous solicitors some three days earlier had become ill and discontinued his involvement in the case. Consequently, the wife had engaged a new solicitor and counsel. I note in passing that the wife’s prior solicitor’s illness does not provide an adequate explanation for non-compliance with directions.
Counsel for the wife advised that two days earlier the parties had received valuations in relation to certain parcels of land. There remain, however, no valuation of the various corporate interests owned by the parties.
Counsel for the wife advised the Court that his client accepted the real estate valuer and sought overall an equal division of the parties’ assets. The husband likewise indicated that he accepted the real estate values and also sought an equal division of the parties assets
Both parties sought an opportunity to see if they could resolve the outstanding dispute. The Court indicated that it was entirely iniquitous for the parties to have deliberately failed to comply with Court directions such that no hearing could occur and that it was unreasonably selfish on their part to have prevented other litigants who would comply with orders to have been denied the opportunity by these parties’ thoughtless conduct to have a hearing. In the event that the matter did not resolve, the Court advised the parties it would hear submissions as to why their initiating application and response should not be dismissed.
The matter was stood down to provide the parties the opportunity to see if they could resolve the matter. The Court was advised later that day that the parties had reached an agreement in principle subject to documentation and the husband obtaining legal advice. All parties sought the opportunity to do that over the weekend. The matter was adjourned to 9.30 am on the following Monday.
At 9.30 am on the Monday, the Court was advised that the parties had not settled. Counsel for the wife indicated that his instructions have been withdrawn and sought leave to withdraw which leave was granted.
Each of the parties were then invited to make submissions as to the further conduct of this matter. Each of the wife and the husband sought to blame the other for the predicament they are in, or alternatively their solicitors.
DISPOSITION
The parties have failed to comply with Court directions to hear this matter. They have no valuation of the businesses they conduct, no agreement as to the liabilities or even a balance sheet.
They have each failed to comply with s 95 of the Family Law Act 1975 (Cth) (“the Act”) and the overarching purpose of family law litigation. There is no just reason, given their cavalier and disrespectful attitude, why their case should be given any priority or preference over the hundreds of other people who want a hearing in this Court and who will comply with court directions.
The parties’ Initiating Application as amended and Response as amended will be dismissed without prejudice to their opportunity to recommence these proceedings when they decide they wish to comply with orders of the Court.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 20 January 2025
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