Clowe and Gerrard

[2008] FamCA 1234

FAMILY COURT OF AUSTRALIA

CLOWE & GERRARD [2008] FamCA 1234

FAMILY LAW – PROPERTY – Value of property – significant assets allegedly unaccounted for – application for the appointment of a single expert

Family Law Act 1975 (Cth)

APPLICANT: Ms Clowe

RESPONDENT: Mr Gerrard

FILE NUMBER: MLF 5783 of 2003

DATE DELIVERED: 24 July 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 24 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S.M. Fookes

SOLICITOR FOR THE APPLICANT:	Clancy & Triado
COUNSEL FOR THE RESPONDENT:	Ms R. Stoikovska

SOLICITOR FOR THE RESPONDENT: Caroline Counsel Family Lawyers

Orders

1. All applications be adjourned part-heard before Justice Mushin at 9:30am on Wednesday 30^th July 2008.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLF 5783 of 2003

MS CLOWE

Applicant

And

MR GERRARD

Respondent

REASONS FOR JUDGMENT

1. The substantive proceedings seek relief pursuant to section 79 of the Family Law Act 1975.  The issues in the substantive proceedings are significant and numerous.

2. There is before me today an interim application on behalf of the wife seeking the appointment of a single expert on the issue of an allegation that the husband is essentially not making a full and frank disclosure.

3. Similar issues to this have been before the Court on at least three occasions.  On each of those occasions they were heard by Kay J, they being 27 May 2005, 31 October 2005 and 18 July 2006. 

4. By way of preliminary point, Counsel for the husband submitted that as a result of the hearings before his Honour the issue of whether a single expert should be appointed is effectively res judicata.

5. The only consideration of the specific issue of the appointment of a single expert before his Honour on all of the material was in the second of those applications, that being on 31 October 2005.

6. I have had produced to me and have read the reasons for judgment delivered by his Honour, leading to the orders which he made on each of those second and third occasions.  It is not suggested that a single expert was sought to be appointed by the third application, and as I have said, only of the second application.

7. My reading of the reasons for judgment of that second occasion, 31 October 2005, satisfies me that the issue was not raised by his Honour.  That proposition is not dissented to by Counsel for the husband.  Accordingly, I find that the submission that the appointment of a single expert is res judicata, has not been established, and I dismiss it. 

8. Accordingly, the question of whether a single expert should be appointed is a matter of discretion for the Court pursuant to the Family Law Rules 2004 (Cth).

9. Objection was taken by Counsel for the husband to the admission of an affidavit sworn by Mr M on 25 May 2005.  That affidavit was filed without leave on that date, and at the hearing of 27 May 2005 his Honour refused to accept it.  Accordingly, in a formal sense, that affidavit has never been evidence before the Court. 

10. Counsel for the wife referred me to an affidavit of Mr P sworn on 17 July 2008, filed on the same day, which responds to that evidence of Mr M.  The response is in detail and deals specifically with issues raised by Mr M.  Each of those witnesses is an accountant and no issue is taken as to their expertise, and therefore their right at law to express opinions on issues before the court.

11. On the basis that the husband has seen fit to file an affidavit by an expert on his behalf responding to Mr M’s affidavit, I found that it would be a denial of the wife's rights not to allow her to rely on Mr M’s affidavit.  I accordingly gave leave to the wife to file that affidavit, and I have read it.

12. At paragraph 4 of the affidavit of Mr M, he swears:

    I conclude that on the basis of the income earned by the husband and his associated service trust during the period and the movements in the assets of the couple (buying, selling property and borrowing and repaying loans) that there is a sum of approximately $2,600,000 unaccounted for.

13. At paragraph 26 of the same affidavit, Mr M swore:

    The disposition of the unaccounted $2,606,347 must be explained as a matter of urgency before any further action should be admitted.

14. As I have said, the affidavit of Mr P takes issue with that statement.  This would appear to be a matter in which it is asserted that there is a high gross asset pool, but at least on the part of the husband that the net assets are very small indeed.  That is not a finding but just an impression which I have from the material which has been put before me this morning. 

15. In my view, a prima facie issue has been raised with respect to the absence of a very large amount of money which, if it were found to be correct or even in part correct, may well have a very significant bearing indeed on the proceedings.

16. In the circumstances, it seems to me that there is a high likelihood that were I not to appoint a single expert to investigate this issue there would be a very significant risk of my not being able to bring justice and equity in these proceedings as between the parties in accordance with the requirements of the legislation and the authorities thereunder.

17. Accordingly, the exercise of my discretion will be in favour of the appointment of a single expert.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  17 April 2009