BRIE & BRIE AND ANOR - [2019] FamCA 230

FAMILY COURT OF AUSTRALIA

BRIE & BRIE AND ANOR

[2019] FamCA 230

FAMILY LAW – PRACTICE AND PROCEDURE

Family Law Rules 2004
APPLICANT:	Mr Brie

RESPONDENT:

Ms Brie

INTERVENOR:

Mr Y Brie

FILE NUMBER:

BRC

10395

2017

DATE DELIVERED:

16 April 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

10 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P Campton SC

SOLICITOR FOR THE APPLICANT:

Phillips Family Law

COUNSEL FOR THE RESPONDENT:

Mr M Alexander

SOLICITOR FOR THE RESPONDENT:

Quinn Family Law

SOLICITOR FOR THE INTERVENOR:

Self-represented

Orders

That Mr Y Brie be granted leave to intervene in these proceedings, whether they be enforcement of the final consent orders made 7 November 2017 or s 79A application, with the extent of his participation to be directed by the Court from time to time.
That pursuant to Rule 15.44 of the Family Law Rules 2004, a single expert be appointed to report on the current market value of the husband’s interest in (including tax and realisation costs) the following entities (or such other and additional entities as identified by the parties):
a.         Z Pty Ltd as trustee for the Z Trust;
b.         AA Pty Ltd;
c.         BB Pty Ltd;
d.         CC Partnership;
e.         DD Joint Venture;
f.         EE Joint Venture;
g.         FF Joint Venture;
h.         GG Pty Ltd;
i.          HH Pty Ltd;
j.          JJ Pty Ltd as trustee for JJ Trust;
k.         KK Trust;
l.          LL2 Pty Ltd;
m.       MM Pty Ltd;
n.         NN Pty Ltd;
o.         OO Pty Ltd;
p.         PP LLC;
q.         O Pty Ltd as trustee for the O Trust;
r.         QQ Pty Ltd;
s.         RR Pty Ltd;
t.          Y Pty Ltd;
u.         SS Pty Ltd;
v.         BB LLC;
w.        TT Pty Ltd;
x.         UU Pty Ltd;
y.         VV Pty Ltd; and
z.         Brie Superannuation Fund.
That for the purpose of the appointment of the single expert:
a.unless the single expert is otherwise agreed, the husband shall provide to the wife:
i.the name of three (3) proposed experts; and
ii.a schedule of the qualifications of each proposed expert and an estimate of each proposed expert’s fees.
b.the wife shall nominate one (1) of the proposed experts;
c.in the event that the wife fails to nominate an expert within seven (7) days of receiving the information referred to in Order 3(a) hereof, the husband shall nominate the expert;
d.the single expert shall be provided with a joint letter of instruction;
e.if the parties are unable to agree or for any reason the joint instructions cannot be obtained, they will each provide a statement of facts to the single expert within seven (7) days of the appointment; and
f.the husband will meet the costs of the single expert in the first instance, with the husband having liberty to apply as to the contribution to be made by the wife.
That after the production of the single expert report, the parties do all acts and things to attend mediation and for this purpose:
a.the…

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.

Continue reading BRIE & BRIE AND ANOR

Details

AGLC: BRIE & BRIE AND ANOR [2019] FamCA 230
Case: [2019] FamCA 230
Decision Date: 16 April 2019

CaseChat Overview and Summary

In the Family Court of Australia, Justice Baumann considered an application involving Mr Y Brie, the wife, and the husband. The proceedings concerned either the enforcement of final consent orders made on 7 November 2017 or an application under section 79A of the *Family Law Act 1975* (Cth). Mr Y Brie sought leave to intervene in these proceedings, and the court was required to determine the extent of his participation.

The primary legal issues before the court were the appointment of a single expert to report on the current market value of the husband's interests in a comprehensive list of entities, including companies, trusts, partnerships, and joint ventures, and the process for selecting that expert. Additionally, the court needed to address the parties' obligations regarding mediation following the expert's report and set a date for a final hearing. The court also considered whether other persons or entities affected by potential final orders should be given notice.

Justice Baumann granted Mr Y Brie leave to intervene, with his participation to be directed by the Court as proceedings evolve. The Court ordered the appointment of a single expert to assess the market value of the husband's interests in numerous specified entities, including tax and realisation costs. The process for selecting this expert involved the husband proposing three candidates, with the wife nominating one, or the husband nominating if the wife failed to do so within seven days. The expert would receive a joint letter of instruction, or individual statements of fact if agreement on instructions could not be reached. The husband was to bear the initial costs of the expert, with liberty to apply regarding the wife's contribution. The parties were also directed to attend mediation after the expert report was produced, with a process for selecting a mediator and sharing mediation costs equally. The proceedings were adjourned for a case management hearing and subsequently set down for a four-day final hearing commencing on 8 October 2019. The costs of the interim hearing were reserved.

Orders

Orders of the court

Orders

1. That Mr Y Brie be granted leave to intervene in these proceedings, whether they be enforcement of the final consent orders made 7 November 2017 or s 79A application, with the extent of his participation to be directed by the Court from time to time.

2. That pursuant to Rule 15.44 of the Family Law Rules 2004, a single expert be appointed to report on the current market value of the husband’s interest in (including tax and realisation costs) the following entities (or such other and additional entities as identified by the parties):

2. a. Z Pty Ltd as trustee for the Z Trust;

2. b. AA Pty Ltd;

2. c. BB Pty Ltd;

2. d. CC Partnership;

2. e. DD Joint Venture;

2. f. EE Joint Venture;

2. g. FF Joint Venture;

2. h. GG Pty Ltd;

2. i. HH Pty Ltd;

2. j. JJ Pty Ltd as trustee for JJ Trust;

2. k. KK Trust;

2. l. LL2 Pty Ltd;

2. m. MM Pty Ltd;

2. n. NN Pty Ltd;

2. o. OO Pty Ltd;

2. p. PP LLC;

2. q. O Pty Ltd as trustee for the O Trust;

2. r. QQ Pty Ltd;

2. s. RR Pty Ltd;

2. t. Y Pty Ltd;

2. u. SS Pty Ltd;

2. v. BB LLC;

2. w. TT Pty Ltd;

2. x. UU Pty Ltd;

2. y. VV Pty Ltd; and

2. z. Brie Superannuation Fund.

3. That for the purpose of the appointment of the single expert:

3. a. unless the single expert is otherwise agreed, the husband shall provide to the wife:

3. i. the name of three (3) proposed experts; and

3. ii. a schedule of the qualifications of each proposed expert and an estimate of each proposed expert’s fees.

3. b. the wife shall nominate one (1) of the proposed experts;

3. c. in the event that the wife fails to nominate an expert within seven (7) days of receiving the information referred to in Order 3(a) hereof, the husband shall nominate the expert;

3. d. the single expert shall be provided with a joint letter of instruction;

3. e. if the parties are unable to agree or for any reason the joint instructions cannot be obtained, they will each provide a statement of facts to the single expert within seven (7) days of the appointment; and

3. f. the husband will meet the costs of the single expert in the first instance, with the husband having liberty to apply as to the contribution to be made by the wife.

4. That after the production of the single expert report, the parties do all acts and things to attend mediation and for this purpose:

4. a. the wife shall provide the husband with the name of three (3) proposed mediators and a list of proposed dates to convene mediation;

4. b. the husband shall nominate one (1) of the proposed mediators and a date for mediation within seven (7) days of receiving the information referred to in Order 4(a) hereof from the wife; and

4. c. the parties shall share equally in the costs of the mediator.

5. That these proceedings be adjourned for Case Management Hearing at 9.30am on 9 August 2019 for trial directions and further consideration of the other persons or entities who may be affected by orders made by the Court after a final hearing, and whether those persons or entities should be given notice of the applications.

6. That these proceedings be set down for Final Hearing for four (4) days commencing at 10.00am on 8 October 2019 in the Family Court of Australia at Brisbane.

7. That the costs of the parties of this interim hearing be reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brie & Brie and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.