LYNTON & MARTEL

[2014] FamCA 712

FAMILY COURT OF AUSTRALIA

LYNTON & MARTEL [2014] FamCA 712

FAMILY LAW – PRACTICE AND PROCEDURE – Husband to pay single expert and execute letter of engagement.

Family Law Act 1975 (Cth)

APPLICANT: Ms Lynton

RESPONDENT: Mr Martel

FILE NUMBER: BRC 7448 of 2012

DATE DELIVERED: 29 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Stevenson J

HEARING DATE: 18, 22, 29 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lynton appeared in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Martel appeared in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the husband pay a sum of $8,800 to the single expert Mr M as follows:

   1.1$2,000 by 5 September 2014

   1.2$2,000 by 30 September 2014

   1.3$2,000 by 31 October 2014

   1.4$2,000 by 30 November 2014

   1.5$800 by 31 December 2014

2. That the husband execute the letter of engagement submitted to him by Mr M and return that document to the single expert by 5 September 2014.

3. That the husband comply with all directions and orders of the court no later than 1 December 2014.

4. That the wife’s Application in a Case filed on 15 April 2014 is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lynton & Martel 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 7448 of 2012

Ms Lynton

Applicant

And

Mr Martel

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Ms Lynton (“the wife”) and Mr Martel (“the husband”) are in dispute as to alteration of property interests.  These proceedings concern the wife’s Application in a Case filed on 15 April 2014, whereby she sought the following orders: 

   1.That the respondent pay immediately all costs up front for the valuation of the business [S] Pty Ltd.  Order dated 2 August 2013 Registrar Stoneham.

   2.That the respondent pay spousal maintenance up to date.  Order dated September 2012 Justice Forrest.

   3.That the respondent pay all outstanding child support and continue to pay an amount of child support based on his true capacity and ability to pay.

   4.That in the event the real value of the marriage asset pool cannot be determined that the court will proceed to make an estimate based on the evidence to date and the opinion of the court appointed valuer Mr [M].

   5.That the respondent be ordered to fully comply with all orders in a fast and efficient manner in order to settle this matter.

2. The wife’s application was supported by her affidavit sworn on 14 April 2014 and that of a single expert chartered accountant, Mr M, of 10 April 2014.  Mr M has been engaged to carry out a valuation of a business known as S Pty Limited.   Pursuant to orders and directions made on 1 July 2014, service of these documents was to be effected upon the husband by email no later than 4:00pm on that day.  The proceedings were then adjourned to 18 August 2014 before me.

3. On 18 August 2014 both parties appeared by telephone, with the husband being in the United States at that time.  A significant issue is payment of the fees of the single expert.  On 18 August 2014 the husband indicated that he wished to negotiate with Mr M in relation to payment of his fees and completion of his report.  Accordingly, I adjourned the proceedings to 22 August 2014. 

4. The husband was unable to be contacted on any telephone number which he provided on 22 August 2014.  I made the following orders and directions on that day: 

   1.It is noted that the husband was uncontactable on any telephone number which he provided for the purposes of the mention of these proceedings at 9:30am on 22 August 2014.

   2.The wife’s Application in a Case filed on 15 April 2014 is adjourned for hearing by way of submissions only to 9:30am on 29 August 2014.

   3.Each of the parties is directed to file and serve any affidavit or Financial Statement upon which he or she intends to rely for the purposes of the interim hearing no later than 2:00pm on 27 August 2014.

   4.It is noted that the wife’s Application in a Case will be determined at 9:30am on 29 August 2014 on the basis of the evidence before the court as at 2:00pm on 27 August 2014.

   5.It is noted that the court intends to make orders for payment of the fees of the expert Mr [M] at 9:30am on 29 August 2014.

   6.It is directed that a copy of these orders be served upon each of the parties by email no later than 4:00pm on 22 August 2014.

   Service of these orders and directions was effected upon the husband by email on that day, with the assistance of the Judicial Services Team Leader. 

5. On 18 August 2014 the husband emailed to Mr M a proposal for payment of his fees and completion of his valuation (exhibit 1).  The husband’s proposal was as follows: 

   Here is the letter i sent to Mr [M], could you please get a copy to Her Honor before friday, thanks. In regards to the court hearing on friday I will be traveling and can be reached on … USA. If we don’t here back from Mr [M] before Friday not sure what to do, maybe wait until we do hear from him, we know his wife is sick. I don’t want to waste the courts time on Friday.

   Regards

   [the husband’s given name]

Begin forwarded message:

From: [the husband] <…>

Subject: valuation

Date: August 18, 2014 at 5:23:05 PM PDT

To: [Mr M] <…>

Cc: [Ms T] <…>

Hi [Mr M’s given name]
Sorry to here about your wife, hope it all works out for the best.
We had the court hearing yesterday and in regards to the valuation you are doing, we need to know when it will be ready and in regards to payment I will have to do a payment plan for the $8000.
We are still under the pump at the moment as I have informed you over the last 6 months.
With the loss of [Business A] we are now putting all our staff on a four day week.
I suggest the following to pay your $8000 fee for the valuation.
$1000 upon agreement and the rest over 70 weeks, we should be able to maintain that rate.
Please reply ASAP as we have the next hearing on Friday, and this case can not proceed until we have the valuation.
Regards
[the husband]

1. Mr M replied by email dated 21 August 2014 (exhibit 2) in the following terms: 

   Further to my email to you dated 14 August 2014 and your reply dated 19 August 2014 I note your offer to pay our fee of $8,000 plus GST over a period of 70 weeks.

   Firstly I advise that our time costs to date on this matter for work conducted covering the period from 24 October 2013 to the present time now exceeds the “capped” amount of $8,000 excluding GST.  It is therefore obvious that our final costs will well exceed the $8,000 plus GST that I am prepared to “cap” our fee at.

   It is also noted that your company’s business, [S Pty Ltd], currently has an annual turnover in the order of $3.5 million to $3.6 million per annum.

   The long timeframe proposed by you of 70 weeks for payment is not acceptable.

   However, I am prepared on behalf of my firm to accept the payment of our fee of $8,000 plus GST, $8,800 in total on the following basis.

   Ø$2,000 with and upon return of our signed Engagement Letter by 31 August 2014.

   Ø$2,000 by 30 September 2014 (I anticipate rendering our fee in September 2014 following finalisation of my report).

   Ø$2,000 by 31 October 2014.

   Ø$2,000 by 30 November 2014.

   Ø$800 (final payment) by 31 December 2014.

   The above proposal includes significant concessions to you in respect of our professional costs and the timeframe allowed for you to pay our fee in instalments.

   Should the proposed timetable for payment by instalments not be strictly adhered to, I reserve the right to amend and reissue our Memorandum of Fees on the basis of full recovery of our costs incurred on your matter.

   If my further professional services are required following issue of my Report, e.g. attendance at the Family Court to give evidence in a trial or any supplementary report required, any further services provided will be billed at our normal charge rates which is as follow:

   Ø[Mr M] – Executive Director                  $390.00 per hour

   ØQualified Accountant Assisting               $265.00 per hour

   ØWordprocessing/Secretarial Support       $130.00 per hour

   GST is in addition to the above hourly rates.

   I look forward to your acceptance of the above proposal inclusive of the concessions allowed at your earliest convenience so that this matter can proceed.

2. I am unaware of any response by the husband to the counter-proposal put by Mr M.  The husband elected to file no material in response to the wife’s Application in a Case and supporting affidavits.  Accordingly, I now proceed to determine the wife’s Application in a Case on the basis of the evidence available to me.

Consideration

1. Annexures to the wife’s affidavit of 14 April 2014 demonstrate clearly that the husband has failed to comply with court orders and directions made during 2014.  He chose to place no evidence before the court in relation to the wife’s Application in a Case filed on 15 April 2014. 

2. Exhibit 2 indicated that Mr M requires payment of $8,800 so as to complete his report.  I see no reason why the husband should be relieved of his obligation to pay these fees.  In her affidavit the wife deposed that the husband paid a total of $217.54 by way of child support for three of the parties’ four children as at 14 April 2014.  Otherwise, she is fully responsible for the financial support of the parties’ three children who are under the age of eighteen years. 

3. I will order that the husband make payment to Mr M in the sum of $8,800 in accordance with the schedule proposed by the single expert, with an extension of the time permitted for the first instalment.   It then remains for me to determine the balance of the wife’s Application in a Case. 

4. There was no evidence as to the quantum of arrears of spouse maintenance.  Accordingly, I am unable to make any orders for payment of such arrears.

5. Order 3 as sought by the wife, with due respect to her, is in meaningless terms. If this paragraph was intended to be a departure application, I can identify no ground for such an order within the meaning of section 117 of the Child Support (Assessment) Act 1989. In my view the wife should pursue the issue of child support through the Child Support Agency. I will thus dismiss this part of the wife’s application.

6. Orders 4 as sought by the wife, in my view, should not be made at this stage of the proceedings.  Ultimately, it may be that the court makes orders for alteration of property interests on the basis of the available evidence.  Any such decision is a matter for the trial judge rather than an appropriate issue for determination in the context of a duty application.  Accordingly I will dismiss this part of the wife’s application.

7. The final part of the wife’s application was also expressed in terms which would result in a meaningless order.  It is clear, however, that the husband has blatantly failed to comply with orders and directions of the court during 2014.  I will accordingly order that he comply with all existing directions and orders of the court by 1 December 2014.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 29 August 2014

Associate:     

Date:              29 August 2014