Liveson and Zhou

[2016] FamCA 929

FAMILY COURT OF AUSTRALIA

LIVESON & ZHOU [2016] FamCA 929

FAMILY LAW – PROPERTY – Interim Application - disclosure

Family Law Act 1975 (Cth)

Family Law Rules (2004) (Cth)

APPLICANT: Mr Liveson

RESPONDENT: Ms Zhou

FILE NUMBER: LEC 610 of 2011

DATE DELIVERED: 26 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McDiarmid

SOLICITOR FOR THE APPLICANT: GJ Legal Solicitors

COUNSEL FOR THE RESPONDENT: Mr Andrew

SOLICITOR FOR THE RESPONDENT: Somerville Laundry Lomax

Orders

IT IS ORDERED THAT

1. The hearing of the relief sought by the Applicant in the Minute of Order handed to the Court on 26 September 2016 and marked “Exhibit 1”, is adjourned for further hearing to not before 10.00am on Friday, 4 November 2016.

IT IS FURTHER ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. Within fourteen (14) days the Respondent produce copies of bank account details and statements for accounts with any bank or other financial institution being accounts which she controls either in her name or in the name of any other entities controlled by the Respondent from 1 July 2007 and 30 September 2016 with the exception of accounts held at ANZ or CBA or Esanda.

2. Within twenty-eight (28) days of the Respondent deliver up all outstanding documents requested by B Accountants in respect of a valuation which they are undertaking on behalf of the parties.

IT IS FURTHER ORDERED THAT

1. Within twenty-eight (28) days of the date of this Order, the Respondent provide to the Applicant copies of any documents associated with the following transactions from the ANZ Account number …:

Payment to Office of State Revenue (“OSR”) on 24 October 2013 #...	$1,314.23
Payment to Office of State Revenue (“OSR”) on 24 October 2013 #... for	$1,681.99
Payment to Office of State Revenue (“OSR”) on 24 October 2013 #... for	$1,831.77
Payment to Office of State Revenue (“OSR”) on 24 October 2013 #... for	$2,122.89
Payment to Office of State Revenue (“OSR”) on 24 October 2013 #... for	$10,469.90
Payment to DEFT on 2 December 2013 #... for	$1,398.88
Payment to OSR on 2 December 2013 #1… for	$2,022.69
Payment to OSR on 2 May 2014 #... for	$2,654.92
Payment to OSR on 9 June 2014 #... for	$1,719.06
Payment to OSR on 12 March 2013 #... for	$6,311.24
Payment to OSR on12 March 2013 #... for	$7,227.27
Payment to OSR on 12 March 2013 #... for	$11,085.08

IT IS FURTHER ORDERED

1. The costs of the parties of and incidental to the appearance today, 26 September 2016 are reserved to the trial judge.

2. The directions hearing listed before Registrar Stoneham on 22 November 2016 is vacated.

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 Liveson & Zhou 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 610 of 2011

Mr Liveson

Applicant

And

Ms Zhou

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. What I intend to do in relation to the relief sought in Exhibit 1, is that I intend to adjourn that aspect of the Application in a Case back before myself to not before 10.00 am on the 4^th of November 2016.  The delay between today and that date arises as a consequence of the fact that I will be out of this registry for the next month commencing at the end of this week. So it is the first day I have available to me upon my return to the registry.

2. I make orders by consent in terms of Clause 3, of the Amended Application in a Case filed 23 September 2016 and in terms of Clause 7 of that document with the amendment to the timeframe for the provision of the documents being that it shall read that: “within twenty eight days the Respondent deliver up all outstanding documents requested by B Accountants in respect of the valuation which they are undertaking on behalf of the parties”.

3. I decline to make an order in terms of Clause 1 of the Amended Application in a Case filed 23 September 2016 on the basis that, in my view, the contents of that correspondence contains too many matters factually in dispute between the parties: as a consequence, forwarding it would contain and convey, incorrectly, the implicit acceptance of the same where this is not the case. I also note that I have before me no evidence at this stage about the impact, if any, on the nett value of the property of the parties of those matters raised within that correspondence. I also note the existence of Rule 15.65 of the Family Law Rules which permits or provides to parties a mechanism for questions to be asked of a single expert witness, such as Ms B in this case, after the receipt of a report and note that, pursuant to Rule 15.67(2), the costs associated with such questions are borne by the party asking the questions. I also take into account that, in my view, the issue about any liability which may be occasioned to the husband vis-à-vis his role as a director may be something that may be able to be properly accommodated by orders which require the wife to indemnify him in respect of any consequences arising from the same. Of course those are matters for trial.

4. I decline to make an order in terms of Clause 6 of the Amended Application in a Case. I do so because, at this stage, there is no evidence before me from the single expert witness that such documents are required by her to complete the valuations of the property with which she is engaged. Noting as I do, that she was appointed as a consequence of an Order made by Judge Turner on 7 May 2014 and that there has been at least a request, if not more than one request, by her of the parties for the provision of further and/or additional information to permit her to complete her task. I note, also, in that respect that Clause 2 of the Order made by Judge Turner on 7 May 2014 requires that the parties provide to B Accountants all information reasonably required by them to enable them to complete the valuations in accordance with that Order.

5. Additionally, it seems to me that it may be that, in the event that orders are made for the separate valuation of the Respondent’s businesses at D Town and Suburb C, any records necessary to facilitate this process may also encompass the information contained within the documents referred to in Clause 6 of the Amended Application in a Case. I am confident that if Ms B, the single expert witness, considers that it is necessary she be provided with such documents, she would not hesitate, as she has not in the past, to ask the parties to provide them to her.

6. Insofar as the relief sought in Clause 8 of the Amended Application in a Case, I note that it refers to Annexure D to the affidavit of the Applicant filed 23 September 2016. I strike out the words in Clause 1 of that piece of correspondence which constitute or are in the form of an interrogatory. I strike out Clause 10 of that annexure also on the same basis.

7. I make an order that, within twenty eight days of today, the Respondent provide to the Applicant a copy of all documents associated with the transactions particularised at Clause 1 of Annexure D.

8. I decline to make orders as sought in Clauses 4, 5, 6, and 7 of Annexure D on the basis that, in my view, there is nothing at this point in time to suggest the single expert witness has yet identified any basis for the necessity for disclosure of such documents. There is nothing to suggest that the single expert witness has formed a view that the provision of such documents is necessary to enable the valuation of the parties. This is the case, I reiterate, despite the fact of her appointment as a consequence of an order made 7 May 2014 and the fact of correspondence directed to the parties requesting the provision of additional information since then.

9. I decline to make an order in terms of Clause 11 of the Amended Application in a Case on the basis that, in my view, I am not yet persuaded of the relevance of the same at this stage, nor that there is any particular relevance in relation to such documents given the nine year period to which they relate.

10. I reserve the parties’ costs of and incidental to the application today to trial. I do so in circumstances where it is my intention to take this matter into my trial list.

11. For that purpose then, I intend that the appearance on the 4^th of November fulfil two roles. The first is to enable me to finalise the Application in a Case and to deal with the application for orders in terms of Exhibit 1, that is before me; the second is to hear the parties in relation to directions for trial. I note that the order made by Registrar Stoneham on the 2^nd of August of this year listed the matter for further directions before a Registrar on the 22^nd of November. So as not to have two appearances within the same month it is my intention to vacate Clause 4 of that Order and to have the appearance before me on the 4^th of November, as I say, fulfil two roles: the first, to deal with the outstanding interim application and the second, to hear the parties in relation to those matters which need to be addressed in order to list it for final hearing before myself - perhaps sometime in March or April of next year.

12. I am anxious to ensure that the matter is brought to conclusion before the end of another financial year given my noting that Ms B’s relatively recent correspondence to the parties referred to a request for information to permit her to bring forward the valuation to the year ended 30 July 2015. But in any event, that is my intention to attempt to do so at that next appearance.

13. Since I know that I will be the trial judge (subject to any unforeseen events) I will then be in a position, with the benefit of hearing all of the evidence, to properly ascertain those matters I am required to ascertain pursuant to s 117(2) of the Act and to take into account the submissions made on behalf of the Respondent in seeking an order for costs.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 26 September 2016.

Associate:                 

Date:    26 September 2016