MACKINTOSH & GREER

[2011] FamCA 288

FAMILY COURT OF AUSTRALIA

MACKINTOSH & GREER [2011] FamCA 288

FAMILY LAW - EVIDENCE – where the wife seeks leave to rely on the affidavit evidence of an expert – where the Court is not satisfied that the evidence falls within the category of expert evidence to be received by the Court – leave refused.

FAMILY LAW - PRACTICE AND PROCEDURE – where the husband seeks that a property be revalued – where a revaluation will not delay the commencement of the trial – just and equitable – orders that an updated valuation be completed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Mackintosh

RESPONDENT: Mr Greer

FILE NUMBER: ADC 2242 of 2009

DATE DELIVERED: 18 April 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 18 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shaw

SOLICITOR FOR THE APPLICANT: Barnes, Brinsley & Shaw

COUNSEL FOR THE RESPONDENT: Mr Berman

SOLICITOR FOR THE RESPONDENT: Howe Martin & Associates

Orders

1. The matter is listed for trial week commencing 2 May 2011 for five [5] days before the Honourable Justice Dawe.

2. This matter is adjourned to Tuesday 19 April 2011 at 9.15 am before the Honourable Justice Dawe for mention.

3. Leave is given to the wife as necessary to file and rely upon the evidence of Ms W and Ms S (being those affidavits already on file).

4. Further consideration is adjourned of the costs of the wife’s Application in a Case filed on 9 June 2010 to the final hearing of the matter.

5. The question of the costs of the applications is adjourned for further consideration to the final hearing of the matter.

6. Leave is given to the husband to file and serve the affidavit of Mr GT to 13 April 2011.

7. The wife’s solicitors to file and serve an affidavit of Mr O by 4.00 pm on 27 April 2011 to which is annexed his retrospective valuation of K.

8. The husband is given leave to obtain an updated valuation of the property at … G Street in R in the State of South Australia by Mr C being the single expert PROVIDED THAT such affidavit is filed and served by 4.00 pm on 27 April 2011 UPON NOTING initially at the cost of the husband.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2242 of 2009

Ms Mackintosh

Applicant

And

Mr Greer

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The husband seeks an updated valuation of the R property on the basis that the valuation currently on the file dates back to 2009.  The Court is told that the updated valuation of Mr C can be available and can be filed by 27 April 2011 and therefore will not delay the commencement of the trial.

2. The wife opposes the updated valuation asserting that the other assets would need to be updated.  The single expert has recently updated one of the other significant assets held and sought to be retained by the husband.  There appear to be no issues raised as to updating the other significant assets.  Provided this is initially done at the cost of the husband it would be just and equitable to have an updated valuation of the R property.

3. The wife seeks to rely upon the affidavit of Mr D filed on 11 April 2011.  The husband opposes that.  The material filed as part of the affidavit of Mr D clearly establishes his expertise as a forensic accountant.  His qualifications are not in question.  The question is, however, whether the evidence is of the nature of expert evidence or whether it is something else.

4. The letter forwarded to Mr D on 17 February 2011 clearly states that it is an exercise “to assist the wife in proving her initial financial contributions were approximately $3 Million and that her financial contributions during the marriage were approximately $8 Million”.  He was asked to ultimately prepare a report summarising his findings that would be attached to an affidavit.  The letter then refers to material which is forwarded to Mr D, being a schedule entitled “Wife's Taxable Income from All Sources” a folder containing the management accounts from what is referred to as "My client's entities" and a folder containing the wife's bank statements for the period 1999 to 2010.

5. Mr D is then referred to the Rules of the Court in relation to instructions to an expert witness and the duties of the expert.  The report which is annexed to the affidavit is a report dated 11 April 2011 which refers to some material, including 43 annexures. 

6. During the discussion of these matters before the Court this morning, I drew attention to annexure 6, which is only one of the annexures.  That annexure is a chronology of events just over six pages ranging from 1941, the husband's date of birth, through to 12 January 2011.  It sets out various matters and, in particular, a large number of items concerning steps taken by the wife or alleged moneys provided by the wife or received by the wife.  I questioned the counsel for the wife as to whether those facts referred to in the chronology were facts before the Court in the affidavit of evidence-in-chief of the wife.  I was told that they were not all there.

7. This report calls into question whether it is a report of an expert giving an expert opinion or whether it is, in fact, what the letter suggests it is, assistance in proving a fact or facts relied upon by the wife. 

8. I am not satisfied that the report falls within the category of expert evidence to be received by the Court.

9. Whilst I accept that there may be some advantage to the Court in receiving that document, assuming it to be based on proper evidence.  Therefore if the evidence as set out in the report were not contested, it might assist the Court to have a summary of the evidence.  On the face of it the report appears to be a report which takes the step of alleging that having examined material, the witness is satisfied that the wife has proved her case.  It will be up to this Court to determine whether the evidence has established the case of the wife.  It is not up to a well-qualified forensic accountant to determine whether the wife has proved her case. 

10. I therefore do not propose that the wife will be able to call the evidence of Mr D in that form.  I do not grant the wife the leave to rely upon the evidence of Mr D at the upcoming trial.

11. The orders that were made to prepare this matter for trial were made in November 2010 to have it listed for five days in May of this year.  The proceedings have been outstanding in this Court for a considerable period of time.  Save and except for the question of the ongoing contravention proceedings, the matter should have been ready for trial now, today being a compliance check date, not a date to see whether the parties might be able to get themselves ready, but a date that was fixed on the clear understanding that the Court had ordered the parties to get the matter ready for trial.

12. Subject to the decision in relation to the contravention proceedings, I therefore propose to leave the matter listed for trial for the five days commencing 2 May.  That will also have the advantage of the matter proceeding on the balance sheet, such as it is, which was filed on 11 April 2011 by the wife and hopefully bringing the matter to a conclusion before further issues arise as to valuations and the existence or otherwise of assets.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 April 2011.

Associate: 

Date:  27 April 2011