Finazzi and Finazzi

[2011] FamCA 973

FAMILY COURT OF AUSTRALIA

FINAZZI & FINAZZI [2011] FamCA 973

FAMILY LAW – EVIDENCE – Admissibility – where affidavit evidence regarding the husband’s character and skill objected to by the wife – where the wife contends the evidence is irrelevant and, if relevant, inadmissible as comment – where the husband contends the evidence is admissible as “lay opinion” pursuant to s 78 of the Evidence Act 1995 – whether the evidence is relevant – where the evidence relates to, at most, the husband’s skill, which is not in issue in this case – where the evidence is not relevant and therefore, inadmissible.

Evidence Act 1995
Family Law Act 1975 (Cth)

Mallet v Mallet (1984) 156 CLR 605; (1984) FLC 91-507
JEL & DDF  (2001) FLC 93-075
SL & EHL [2005] FamCA 132

Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT: Mr Finazzi

RESPONDENT: Ms Finazzi

FILE NUMBER: BRC 3023 of 2010

DATE DELIVERED: 13 December 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 13 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC

SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT: Mr Page SC

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

Orders

IT IS DIRECTED THAT

1. A copy of the transcript of these reasons be expedited and provided to each of the parties free of charge ahead of the adjourned second part of the trial.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3023 of 2010

Mr Finazzi

Applicant

And

Ms Finazzi

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Objection is taken on behalf of the wife to large portions of the affidavits filed by six witnesses on behalf of the husband.  In essence, those witnesses give evidence of the qualities of the husband which, it is said, is directly relevant to an issue in these proceedings.  The objection is that the evidence is irrelevant or that it is “comment”, the last being, as I understand it, a shorthand means of asserting that the evidence consists not of probative facts, but of argument.

2. The issue to which the evidence is said to pertain, relates to what has been labelled in decisions of this court, and in academic writings, as “special contribution.”  That issue has been flagged as such in outlines of case filed by each of the parties.  The husband refers to the decision of the High Court in Mallet v Mallet (1984) 156 CLR 605; (1984) FLC 91-507 and to decisions of this court in JEL & DDF (2001) FLC 93-075 and SL & EHL [2005] FamCA 132.

3. It will be argued centrally by the husband that he is, and has been, possessed of special or unique skills and has exhibited a special or unique set of attributes such that his contribution in the s 79 sense can be seen as special or unique.  That is, his contribution can be distinguished from contributions that might be regarded as within a “normal range” or “unexceptional” even where the property of the parties, or either of them, is very substantial, (as it is here on either parties’ assertion). 

4. The wife’s objections as to relevance and comment are purportedly answered by the husband arguing that the evidence comprises lay opinions admissible by reason of s 78 of the Evidence Act 1995 “the Evidence Act”. It must be observed initially that, in order for the affidavits to be admissible at all, they must satisfy the first test of evidence, namely that it is relevant (see sections 55 and 56 of the Evidence Act). If they do not satisfy that test, then s 78 cannot, as it were, save them. They are not evidence (see s 56 of the Evidence Act).

5. The test of relevance is prescribed in s 55 of that Act. The matters deposed to must be seen as rationally affecting, directly or indirectly, the assessment of the probability of the existence of a fact in issue. I should interpose here that, save for some specific matters that have been addressed during Mr Page’s cross-examination of the husband, counsel for each of the parties have sensibly sought to otherwise agree their respective objections to the affidavit evidence of the other.

6. Consistent with that sensible overall approach, counsel agreed that I should rule on the argument just referred to by reference to examples of evidence of the type objected to and, consequent upon my ruling as to the central argument, counsel would agree on the specific parts of the affidavits that would or would not be struck out consistent with that central ruling*. 

   * Ultimately, specific objections were in fact relied upon.

7. So as to gain a flavour of the evidence objected to, I will refer to some examples.  It is convenient to do so by reference to the affidavit of Mr C, to which counsel for the wife, Mr Page SC, made particular reference, and to the affidavit of Mr D, to which counsel for the husband, Mr Kirk SC, made particular reference.

8. In Mr C’s affidavit filed on 15 September 2011, it is deposed, for example:

   2.I hold a degree in business (majoring in accounting) attained from the University of Technology and I am a CPA with a Public Practice Certificate. In addition I am a registered tax agent. In my practice and professional life, I have dealt with many business owners and … over the years and I can not readily think of any other person who possesses the extraordinary skills that [Mr Finazzi] (…) does.

   …

   5.From my experience of working with [Mr Finazzi] and knowing him personally through his role as CEO of [E Pty Ltd] I have come to know him as a man of integrity with extraordinary communication skills. [Mr Finazzi] has successfully been able to educate thousands of clients to invest in … wealth building.

   6.[Mr Finazzi’s] communication skills have enabled many Australians with an ordinary background to build significant wealth … by educating them with his broad knowledge on investment … and the … market generally.

   7.I have personally experienced [Mr Finazzi]’s extraordinary speaking skills at over 30 … events over the past seven (7) years. I have watched [Mr Finazzi] motivating and teaching ordinary Australians how to reach their full potential and achieve their dreams in the … market.

   …

   9.[Mr Finazzi] has motivated and trained his staff in his organisation successfully and this is a skill which, in my personal experience, very few business people have been able to achieve in their careers.

9. In Mr D’s affidavit filed on 7 September 2011, it is deposed, for example:

   3.I first met [Mr Finazzi] in 1984. From that early meeting I saw that he was very ambitious and driven to succeed, and possessed a unique and almost innate understanding of the … market. In addition, and based on my personal observations and experience of working with him, it is my opinion that [Mr Finazzi] possesses particular admirable qualities that set him apart from your “usual” [businessman]. Those include:

   a.        Integrity;

   b.        Persistence;

   c.        Honesty;

   d.        Tenacity; and

   e.        Resilience.

   4.I can say this because I have known [Mr Finazzi] for over 26 years and I have worked with him in a mentor style relationship for much of his career. Specific examples of particular dealings or events that demonstrate those abovementioned abilities are set out below.

   …

   6.[Mr Finazzi] … made many millions of dollars from a transaction that myself and numerous other experienced [businessmen] rejected. From my 40 years of experience in the industry, I can say that, even at that time, [Mr Finazzi] possessed special skills in terms of his ability which allowed him to see the potential … that others were unable to see. This sets him apart from other [businessmen] in my view.

   …

   9.I certainly see [Mr Finazzi] as more than a typical [businessman] or, as for many other [businessmen] I’ve known for over 20 years, he has proven to be more resilient and successful with a smaller capital base.

10. The relevant facts in issue in this case are, relevantly, the nature, form and characteristics of the contributions made by the parties to the acquisition, conservation or improvement of the properties of the party, or either of them.  It is argued on behalf of the husband that the evidence is relevant, because it might rationally affect this issue insofar as his contributions are concerned.  I disagree.  The evidence, as it seems to me, deposes to the personal qualities and skills of the husband and, at its highest, relates his skills to those of other entrepreneurs and businessmen (see as but one example, Mr D’s affidavit at paragraph 6 where he says “I can say that [the husband] possessed special skills …”

11. In pointing to why, in my view, this evidence is irrelevant, it is unnecessary to go further, at least for present purposes, than the judgments of the High Court in Mallet v Mallet.  (For convenience, I will refer to the FLC report of that case (Mallet & Mallet (1984) FLC 91-507)) What is in issue in this case is not the personal, professional or entrepreneurial skills and qualities of the husband, and certainly not his personal, professional or entrepreneurial skills when compared to other husbands or other businessmen. What is in issue is the contributions made by the husband as compared to the wife in this particular marriage in its particular circumstances (see, for example, Gibbs J in Mallet at 79,111. In particular, as Gibbs J there says “the respective values of the contributions made by the parties must depend entirely on the facts of the case…”

12. Reference should also be made to the judgments of Mason J at 79,120 where his Honour refers to “the duty on the court to evaluate [contributions].”  Wilson J referred at 79,126 to an assessment of the quality of respective contributions and to the “homemaker contribution” in particular in terms of its “true worth” in “building up of the assets” (see also Dawson J to similar effect at 79,132). 

13. Here, there is no issue that the very substantial business empire is comprised of multiple components and the measure of wealth created, irrespective of the ultimate finding as to its value (which is significantly in contest), was brought about primarily through the skill, hard work, acumen and personality characteristics of the husband.  Similarly, there is no issue, at least in respect of the homemaking and parent role, that the wife performed admirably.  Indeed, the husband admits as much.

14. I appreciate, in saying that, that there is potentially a live factual issue about the extent or the nature of the contributions that the wife made to the various businesses or entities.  The matters in issue, not, it should be said, without their considerable difficulties, are how those respective contributions should be brought to a just and equitable conclusion based on their role in the building up of the assets within the context of this particular marriage.  The issue is not how one might label or describe any such contributions (save as to attribute them as the sub-sections of s 79 require). 

15. The issues are what contributions, by reference to s 79(4), have been made; how do the respective contributions, as found, compare in the building up of the assets of this particular marriage in its particular circumstances.  And, finally, as Coleman J points out in Steinbrenner & Steinbrenner [2008] FamCAFC 193, to attempt to convert those findings given in qualitative terms into quantitative expression. The fact that one or more people with whom the husband has been associated over his working life say that he has particular qualities or skills (given, it might be noted, predominantly by reference either to themselves, their own experience or by comparison with other developers) does not, in my view, rationally affect the matters in issue in these proceedings. They are, to repeat, the nature, form and characteristics of the contributions made relevantly by the husband within the marriage and how those contributions might be assessed and compared with contributions made by the wife in her role within this particular marriage in its particular circumstances.

16. The evidence is, in my judgment, irrelevant and I will exclude it. 

17. It will be obvious from what I have said that, as a result of that conclusion, it is not necessary to consider the application of s 78 of the Evidence Act.

18. I propose to include these reasons as part of my trial reasons, but to direct that a copy of the transcript of these reasons be expedited and provided to each of the parties free of charge ahead of the adjourned second part of the trial. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 13 December 2011.

Associate: 

Date:  21 December 2011