FAMILY COURT OF AUSTRALIA
| KLEARCHOS & KLEARCHOS & ORS | [2016] FamCA 571 |
FAMILY LAW – PROPERTY SETTLEMENT – PRACTICE AND PROCEDURE – Application to have the final proceedings heard in separate blocks – Interests of justice – Where there is no defined separation of issues –Where the onus falls to the party proposing a separated hearing – Where the onus has not been discharged – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Application to dispense with the requirement for a conciliation conference – Where there would be little utility in the parties participating in a conciliation conference – Notation that the proceedings under s 79 of the Family Law Act 1975 (Cth) may be heard despite the parties not having attended at a conciliation conference with a registrar.
FAMILY LAW – EXPERT EVIDENCE – Application to rely on adversarial experts in the case of disagreement as to choice of single experts – Orders made for a procedure to appoint single experts.
| Family Law Act 1975 (Cth) s 79 |
| APPLICANT: | Ms Klearchos |
| FIRST RESPONDENT: | Mr Klearchos |
| SECOND RESPONDENT: THIRD RESPONDENT: FOURTH RESPONDENT: FIFTH RESPONDENT: | E Pty Ltd Q Pty Ltd R Pty Ltd H Ltd |
| FILE NUMBER: | SYC | 2977 | of | 2013 |
| DATE DELIVERED: | 24 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 24 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dixon SC |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
| COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENTS: | Mr Wheelhouse SC |
| SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENTS: | Rockwell Olivier |
| COUNSEL FOR THE FIFTH RESPONDENT: | Mr Priestley |
| SOLICITOR FOR THE FIFTH RESPONDENT: | Peters Linette Lawyers |
Orders
The wife and husband do all things to instruct single experts to prepare reports as to:
(a)The value of any real estate in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of any order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”);
(b)The value of any corporate entity of whatsoever nature (including but not limited to companies, trusts and foundations) in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of an order pursuant to s 79 of the Act;
(c)The value of any vehicle (including ocean vessel) in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes…
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- Case
- [2016] FamCA 571
- Decision Date
CaseChat Overview and Summary
Loughnan J directed the parties to instruct single experts to prepare reports on the value of various assets and corporate entities that the wife alleged were part of the matrimonial pool or controlled by the husband. This included real estate, companies, trusts, foundations, and vehicles, as well as any liabilities associated with these assets and any relevant foreign law. The process for selecting these experts was detailed, requiring the wife to propose experts and the husband to nominate from those proposals, with provisions for the wife to select if the husband failed to nominate. The costs of these experts were to be shared equally in the first instance, with ultimate responsibility reserved for the final hearing.
The court also addressed procedural matters, including the filing of amended applications and responses, and granted leave for parties to administer specific questions and issue subpoenas for documents. Notably, the court found special circumstances justifying an order under section 79 despite the parties not having attended a registrar's conference. An application for a separate hearing was refused, and the proceedings were fixed for a 10-day hearing commencing on 28 November 2016, with provisions for parties to agree on alternative dates or restore the matter if the fixed dates became impracticable. Further directions were given regarding the filing of affidavits, updated financial statements, case outlines, agreed balance sheets, and the joining of issue on evidence. The question of costs for the day was reserved.
Orders
Orders of the court
1.
The wife and husband do all things to instruct single experts to prepare reports as to:
(a) The value of any real estate in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of any order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”);
(b) The value of any corporate entity of whatsoever nature (including but not limited to companies, trusts and foundations) in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of an order pursuant to s 79 of the Act;
(c) The value of any vehicle (including ocean vessel) in which the wife alleges that the husband has an interest of whatsoever nature, or controls, or which the wife otherwise submits should be included in the matrimonial asset pool for the purposes of an order pursuant to s 79 of the Act;
(d) The assets and financial resources which the wife alleges are owned or controlled by the husband, or have been transferred by him to third parties, and historical transactions related thereto;
(e) Any liability encumbering or in connection with howsoever any property or entity listed in paragraphs (a) to (d) (inclusive) hereof, and historical transactions related thereto;
(f) Any issue of foreign law which is prima facie relevant to these proceedings.
2.
For the purposes of order 1:
2.1 The wife provide to the solicitor for the husband a list of assets, liabilities, financial resources and entities which she seeks to have valued and any question of foreign law about which advice is required, together with the names of three proposed experts for each item or question and an estimate of the costs of each proposed expert;
2.2 Within 28 days after compliance with 2.1, the husband shall nominate one of the proposed experts for each item;
2.3 In the event that the husband fails to comply with 2.2, in relation to any category of expert, the wife is at liberty to select an expert from those proposed.
2.4 In the first instance the costs of the experts are to be paid equally by the husband and the wife but in the event that the husband neglects or fails to meet some or all of his contribution to those costs, they will be paid by the wife.
2.5 The ultimate responsibility for the costs of the experts is reserved to the final hearing.
3.
Within 28 days from today’s date or such further time as the parties may agree the wife file any further Amended Initiating Application in these proceedings together with, in relation to any prayer other than a prayer pursuant to s 79 of the Act or otherwise calling for orders or declarations against or affecting the third parties to the proceedings, points of claim fully particularised in accordance with the provisions of Parts 14 and 15 the Uniform Civil Procedure Rules of NSW.
4.
Any Amended Response in relation to the wife’s Further Amended Application shall be filed within 21 days thereafter.
5.
Leave is granted to the parties to administer such number of specific questions to each other party as they may be advised.
6.
Leave is granted to the parties to seek the issue of such number of subpoenas to produce documents, as they may be advised.
7.
The Court notes that it is satisfied that there are special circumstances by reason of which it would be appropriate to make an order under s 79, notwithstanding that the parties to the proceedings have not attended a conference in relation to the matter with a Registrar or Deputy Registrar of the Court.
8.
The application of the respondents for a separate hearing in relation to some aspects of the proceedings is refused.
9.
The proceedings are fixed for hearing over 10 days commencing on 28 November 2016.
10.
Notwithstanding order 9, leave is granted to the parties to settle by agreement with the associate to Justice Loughnan other dates for the final hearing and in the event that the dates fixed in order 9 are not practicable for one or more of the parties and the parties are unable agree on appropriate alternate dates with each other and the Court, they have leave to restore the proceedings before Justice Loughnan on giving seven days’ notice to the Court and each other indicating by correspondence suggested available dates for each party.
11.
Unless the parties agree to the contrary, 28 days prior to the commencement of the trial, each party shall file and serve all affidavits on which they seek to rely, that is to be only one affidavit from each deponent and in relation to the husband and the wife they shall file and serve within that same time, updated Financial Statements.
12.
Not later than seven days prior to the commencement of the final hearing each party shall lodge with the Court and exchange with the other parties, a Case Outline document setting out the details of the orders sought by that party to the extent that they are different from the most recently filed Application or Response, a list of the documents to be relied on, and an outline of the arguments to be made in relation to each of the claims before the Court.
13.
By 10.00 am on the first morning of the trial, the legal representatives for the husband and wife shall settle an agreed balance sheet and the advocates for all parties shall join issue in relation to objections to evidence.
14.
In the event that any party becomes aware of any circumstance that would prevent the hearing commencing on the first date fixed or continuing to conclusion by the last date fixed, that party shall forthwith restore the proceedings before Justice Loughnan on 48 hours’ notice to the Court and the other parties.
15.
The parties are granted general liberty to apply on seven days’ notice in relation to the proceedings and in particular, the parties are invited to restore the matter in relation to any issues arising under the slip rule or any agreed or disputed issues in relation to the wording of these orders.
16.
The question of the costs of the parties of and incidental to the proceedings today is reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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