Darling and Darling

[2009] FamCA 368

FAMILY COURT OF AUSTRALIA

DARLING & DARLING [2009] FamCA 368

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of expert

Family Law Act 1975 (Cth)

APPLICANT: Ms Darling

RESPONDENT: Mr Darling

FILE NUMBER: MLC 6328 of 2007

DATE DELIVERED: 7 MAY 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 7 MAY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GEDDES QC WITH MS VOHRA

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOC

COUNSEL FOR THE RESPONDENT: MR BARTFELD QC WITH DR INGLEBY

SOLICITOR FOR THE RESPONDENT: HALL & WILCOX

Orders

1. That the solicitors for the husband forthwith produce to Mr H of C Document Services Pty Ltd for the purposes of preparing an expert report, originals of the following documents:

   (a)Mr Darling Declaration (“the Shareholder”) dated 31 December 2005;

   (b)     Mr Darling Declaration (“the Trustee”) undated;

   (c)     The Darling Family Trust dated 31 December 2005;  

   (d)Power of Attorney signed by the husband 28 December 2005 and Statement of Acceptance dated 31 December 2005;

   (e)The Darling Family Trust; and

   (f)The Deed of Appointment of Trustee of the Darling Family Trust.

2. That by 11 May 2009 Hall & Wilcox produce for inspection and copying by the wife’s solicitors the following documents:

   (a)Hall & Wilcox timesheets and billings for all mailers of the husband and mailers on which he has provided instruction to the firm (“the mailers”) in the months of December 2005 and January 2006;

   (b)Facsimile records relating to all of the matters for the months of December 2005 and January 2006;

   (c)Courier records relating to the matters for the months of December 2005 and January 2006, specifically records showing the dispatch to Ghana (prior to 28 December 2005) and receipt from Ghana (after 28 December 2005) of all documents which required execution in Ghana prior to signature in Australia.

   relating to the taxation file out of which the relevant power of attorney and statement of acceptance were prepared.

3. That the wife file any material upon she intends to rely for the final hearing by 12 noon on 15 May 2009.

4. That all parties’ costs of this day are reserved to the trial judge.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel, including senior counsel to attend.

2. That the reasons for these orders be transcribed and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6328  of 2007

MS DARLING

Applicant

And

MR DARLING

Respondent

REASONS FOR JUDGMENT

1. On 7 May 2009, I made orders permitting the production of documents for inspection by a person who is said to be a hand-writing expert. I ordered that other connected documents be produced for inspection. There was little dispute about the latter. I indicated at the time that I would later give reasons. These are those reasons.

2. This is a substantial property dispute between the parties that is listed for final hearing before Murphy J in early June.

3. The wife had not filed her affidavit material pursuant to the orders that I made when the matter was set down.

4. Months have now gone by and whilst there is a potential problem in relation to material other than that of the wife herself, I have ordered her to file her affidavit in the coming week.

5. The issue came before me on an urgent basis. Mr Bartfeld SC with Dr Ingleby appeared for the wife and Mr Geddes SC and Ms Vohra appeared for the husband.

6. The background to this discrete application was simple.

7. The parties have a dispute about whether significant overseas assets belong or belonged to the husband. There are assets in Australia and Ghana.

8. Amongst documents provided in discovery, the wife’s practitioner found an enduring power of attorney and declaration dated 31 December 2005 executed by the husband. What appears to have pricked the wife’s curiosity is the date; it being a Saturday and New Year’s Eve.

9. There was also a trust deed created on the same day disclosed.

10. One of the concerns of the wife and her advisers was that a document annexed to the power of attorney and which accepted the formal responsibilities under the power was provided for inspection in June 2008. It was, according to the wife’s solicitor, different to the document attached to the power of attorney when the same inspection process was undertaken in April 2009.

11. Senior Counsel for the wife said that this made the wife “suspicious”.

12. That suspicion was apparently heightened because various Ghanian assets were disposed of to trusts in Cyprus using the power of attorney. If the acceptance was not properly executed, Mr Bartfeld said that it may have been that the disposal was invalid.

13. The wife’s suspicions were therefore aroused by the unusual dating on 31 December, the fact that the document now produced had not been earlier produced and that since the disposal of the Ghanian assets, the husband was receiving loans from the controlling entities.

14. The wife’s position was that notwithstanding the lateness, she was entitled to check the truth because all of this was in the control of the husband and although she was late, these documents had only recently been provided to her.

15. In turn, if her suspicion proved to be right, there would need to be service of documents on the trustees of the trusts because an application under s 106B of the Act would need to be made.

16. Thus, the wife desired to have the original document examined by a handwriting expert and to also examine the usual records of the husband’s lawyers around 31 December 2005 to see what was occurring.

17. Mr Geddes noted the wife’s “suspicions” but observed that the loans referred to were gifts.

18. In relation to the document examination, he said that the wife had not produced any curriculum vitae details of the handwriting expert. Importantly, to avoid the trial being delayed, there should be a single expert witness appointed rather than allow the wife to proceed down this path.

19. As for the inconsistencies in the documents, he observed that the original document was signed but the copy was undated so there was no intrigue about it.

20. Mr Bartfeld made clear that all of this might come to nothing and then no evidence would be called but he said it was the wife’s entitlement to check.

21. In my view, it is too early to determine whether a single expert witness should be appointed. Rule 15.42 of the Family Law Rules 2004 sets out the purpose of appointing such a witness is to ensure that parties obtain expert evidence only in relation to a significant issue in dispute and to restrict expert evidence to that which is necessary to resolve or determine a case. Here I am not sure and neither is the wife, whether there is any evidence to so call.

22. The over-arching principle behind the Family Law Rules and which should govern all cases is set out in Rule 1.04:

    The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

23. Whilst I have some concerns about the lateness with which this line of inquiry is being undertaken, it is important that all of the necessary evidence is available to the parties and to the Court to ensure that a just and equitable outcome is achieved. To do that from the wife’s perspective, she must be given an opportunity to investigate and also require the husband to provide the necessary documents to do so.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  13 May 2009