Mathieson & Mathieson

[2009] FamCA 733

FAMILY COURT OF AUSTRALIA

MATHIESON & MATHIESON [2009] FamCA 733

FAMILY LAW – PRACTICE AND PROCEDURE – discovery and disclosure issues

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking that the matter be heard on an undefended basis due to the husband’s failure to comply with orders – hearing by default not just and equitable

FAMILY LAW – PROPERTY – undertaking – application by the husband seeking to be released from an undertaking to allow him to draw on a financial facility secured against the former matrimonial home – application dismissed

FAMILY LAW – EVIDENCE – certificate pursuant to s 128 of the Evidence Act 1995 (Cth) – whether a certificate can be provided where evidence has been given voluntarily without any reference to the capacity to object – Court will hear further from counsel – leave granted to bring the application before the Court without further written application

FAMILY LAW – COSTS – husband to pay the wife’s costs of the application – further consideration of the question of costs generally to be heard at the conclusion of the trial

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Mathieson

RESPONDENT: Mr Mathieson

FILE NUMBER: ADF 2644 of 2003

DATE DELIVERED: 4 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nelson QC

SOLICITOR FOR THE APPLICANT: Belchamber Legal

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Lindleys Solicitor

Orders

1. The Court directs the husband within fourteen [14] days to answer the further questions submitted by the wife’s solicitors AND UPON NOTING that the husband’s solicitors will answer the wife’s solicitor’s letter of the 19 May 2009 within ten [10] days from today.

2. Leave is given to the wife’s solicitors to issue a subpoena to the Child Support Agency in relation to documents in their possession or control concerning the husband’s financial circumstances.

3. Within twenty-one [21] from the receipt of Mr J further report the husband’s solicitors provide to the wife’s solicitors a list of all the factual matters in dispute upon which Mr J’s opinion is based and specify the basis upon which the husband says another expert should be permitted to be called by the husband (that is what challenges there are to his methodology and conclusion).

4. The husband to pay the wife’s costs for the application filed on the 14 July 2009 of and incidental to that application and the hearing today.

5. The husband’s Application in a Case filed on the 17 July 2009 is dismissed.

6. The Court will hear further from counsel about the application for a Certificate under s 128 of the Evidence Act and give leave to the husband’s solicitors to bring this application before the Court on another date without the need to file any further written application provided they give the wife’s solicitors seven [7] days notice.

7. The matter is adjourned to the 4 September 2009 at 9.15 am before the Honourable Justice Dawe for directions in particular in relation to preparing the matter for trial.

8. Further consideration of the wife’s application for costs for the 1^st Day Hearings and work done by the counsel and solicitors for the preparation of those matters will be heard by the Court at the conclusion of the trial in this matter.

9. Further consideration will be given to the time for payment of the wife’s costs by the husband to the next listing on the 4 September 2009 before the Honourable Justice Dawe.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2644 of 2003

MS MATHIESON

Applicant

And

MR MATHIESON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which has come on before me today, specifically on the application filed in the proceedings by both the wife and the husband.  The matter was adjourned for a continuation hearing to this morning when I heard the matter by way of further continuation hearing on 23 April 2009, this matter having been listed before me by way of first day directions in the property settlement proceedings on 16 February 2009.  It is a somewhat complex matter in relation to the proceedings brought by the wife under section 79A to set aside orders which were previously made in this Court by way of a property settlement.

2. There has been considerable material filed and considerable argument in relation to the issues outstanding and in particular, the discovery and provision of information relevant to both the section 79A proceedings and should the matter proceed to a final determination of further property settlement proceedings.  I have made specific orders from time to time after considerable argument with counsel for the parties being heard.  In particular, orders were made by me to attempt to get the matter ready for trial in February and April 2009.

3. In April 2009, I made specific orders that certain things be done and in particular, dealt with the question of discovery and failure to disclose items which were then alleged to be the default of the husband.  I specifically ordered that the husband within seven days of that date provide the solicitors with all information, disclosure and discovery concerning the disposal of a Harley‑Davidson motorbike and boat.  There was some material provided and it now transpires that two boats, a Harley‑Davidson motorbike and a trailer have been sold.  The husband has indicated that he has provided some information.  Only when questioned by me today was it disclosed that some $18,000 has been paid into a bank account and the rest of the money received for those items retained by the husband, he says, in cash.

4. The wife is entitled to receive full documentation concerning where the moneys received for the disposal of the boats, trailer and motorbike have been placed by the husband and what he has done with the cash;  if he has purchased other items with the cash or used it for other means.  The husband is therefore in default of the order made by me on 23 April and in any event, did not do so within the time provided. 

5. I also ordered the parties to exchange information and disclose documents concerning any and all liabilities claimed to be relevant to the proceedings.  The husband, at a very late stage, filed an affidavit setting out what he says are business liabilities, but has not provided supporting documentation.  He did not comply within time.  He has not complied with the order.

6. In relation to superannuation, the issue raised by the wife does not relate to order 3, but relates to matters set out in her letter sent by the wife’s solicitors to the husband’s solicitors.  It has been noted that that letter will be replied to in a short period of time and I have made that notation. 

7. In relation to the questions, the husband was to answer questions put by the wife’s solicitors by 29 May 2009.  That order was made by me on 23 April 2009 when the husband already had the questions.  He did not answer them until July after the wife commenced these proceedings and some of the answers are unsatisfactory.  I have made an order that he answer the further questions put by the wife, as it is appropriate that that be done.

8. In relation to the orders that I made in relation to the husband providing the wife’s solicitors with a list of factual matters in dispute about upon which Mr J’s opinion is based and specify the basis upon which the husband says another expert should be permitted, that was made on the basis that it was noted that Mr J’s opinion would be filed and served by 29 May 2009.  Both parties have received a letter from Mr J dated that date (29 May 2009):  A three page letter, the second page of which sets out the basis upon which he revalued the business (a significant revaluation increasing by millions the valuation which was relied upon in the material before the parties at the time of the hearing before Murray J).  That letter concludes in paragraph at page 3:

   “I will shortly provide a report setting out the detail of the March and December 2005 valuations and the impact of the amended income tax returns”.

9. That report has not been received and I am told by counsel for the wife from the bar table today that it is anticipated that that report will be received by the end of this week.  I am not convinced, however, that some of the information which the husband asserts will alter the valuation by Mr J is not contained in page 2 of the letter of 29 May in which he summarises the information he received from the QuikBook data files.  Therefore, the application by the wife was appropriate.  However, I am also not thoroughly convinced that it might not be more preferable for both parties to have the final report of Mr J available to them before those further steps are taken.

10. I therefore propose to further order that within three weeks from the receipt of Mr J’s further report, the husband’s solicitors provide to the wife’s solicitors a list of all the factual matters in dispute upon which Mr J’s opinion is based and specify the basis upon which the husband says another expert should be permitted to be called by the husband:  that is what challenges there are to his methodology and conclusions and that that list be given within three weeks of the receipt of Mr J’s report by the husband’s solicitors.

11. The wife also sought that due to the husband’s default, this matter be heard on an undefended basis.  At the time of filing the application, that was not an entirely unreasonable approach to be taken, bearing in mind the failure by then of the husband to have complied with many of the orders I made on 23 April.  However, taking into account that this is an application under section 79A and taking into account the material that is in dispute, I am not at this stage convinced that a hearing by default would be just and equitable in these circumstances.

12. In relation to the question of the wife’s costs, I am satisfied that it is appropriate for the husband to pay the costs of the wife in bringing the application filed on 14 July 2009 and of and incidental to that application and the hearing today. Primarily today has been occupied with the considering matters relating to the husband’s default in the compliance with my previous orders. That is the most significant factor, but I also take into account the other factors contained in section 117 and in particular, those in 117(2A).

13. In relation to the husband’s application in the case filed on 17 July 2009, he seeks in that application that he be released from his undertaking given to the Court on 1 March 2006 to the extent that he be at liberty to draw upon:

    “Any financial facility secured against the former matrimonial home to the extent of $165,000 or in the alternative, an amount to pay the expenses of [S Company] and the husband’s personal expenses as and when they fall due as specified in paragraph 7 of his affidavit and the amount of $150,000 to pay legal fees and disbursements”.

14. There is no material before the Court other than the submissions of counsel as to why $150,000 should be borrowed from the bank by way of anticipated legal fees, save and except that the parties are also of a mind that this is a matter which is complex.  However, the question in my mind may well be sufficiently answered when we receive Mr J’s report and the husband’s compliance with the orders I have made in relation to why Mr J’s report should be disputed.  The trial may well be able to be limited to a much shorter period of time upon the filing of appropriate limited documentation. 

15. The parties have not yet been directed to file their affidavits of evidence‑in‑chief or statement of financial circumstances for the trial listed to be heard in October and will only be permitted to file affidavits limited to the issues which will then be relevant to be determined by this Court.  They will not be given open slather to file pages and pages of recital and comment.  They will only be given permission to file affidavits of admissible evidence‑in‑chief in relation to the specific issues to be determined.

16. I am not therefore able to make any order releasing the husband from his undertaking in relation to such a large sum which would significantly affect the assets available to be distributed between the parties if an order is made under section 79A. 

17. The other difficulty which the Court faces is that although the affidavit sets out in paragraph 7 his business expenses and liabilities and his personal expenses and liabilities, it does not provide any information in relation to his income which is potentially substantial, bearing in mind the profit and loss statement annexed to the husband’s affidavit showing a gross profit of $253,255 for the period which I understand relates up to May 2009, not June 2009.

18. There is also some issue about the accounts, the names of these accounts and the entities which are operating raised by the husband himself in the affidavit.  Therefore, I am not satisfied they have sufficient information which would allow me to assess the husband’s need to borrow such sums, nor his capacity to meet repayments of those amounts.  There is limited information on the face of the documents provided to me what the Visa card expenses of $150 a month are spent on and why the other amounts should be considered in both the personal and business expenses.  It would appear that documentation to support these figures, which in some cases are estimates, has not also been provided.

19. I therefore dismiss the husband’s application and have indicated that I will hear further from counsel for the husband in due course about the application for a Certificate under section 128 of the Evidence Act where I have some difficulty understanding how a certificate can be given for evidence that was voluntarily given without any reference to the capacity to object to that evidence (although I can see that the affidavit itself contains the information and the request for the section 128 Certificate). I will, however, give leave to the husband’s solicitors to bring that application on again before me at another date without the need to file any further written application, provided that they give the wife’s solicitors at least seven days’ notice of their intention to raise that matter before me at one of the other hearings.

20. I have made those orders.  The matter cannot be properly prepared for trial until Mr J’s report is available and until the orders which I have made, particularly on 23 April 2009 and again today, are obeyed.  I therefore need the matter to come back before me for a continuation hearing so I can then assess the material that is available and what affidavits will be required to be filed before the compliance check which is, I think, listed for 21 September because the trial is starting in early October.  I have given the husband 21 days from the receipt of Mr J”s report.

21. If that isn’t received until 4 September, that will then give the parties just over two weeks to get their affidavits on file, limited to the issues with which I will be dealing. 

22. I adjourn the matter to the first week of September before me for directions, in particular in relation to preparing the matter for trial. 

23. In relation to the other question of costs, I have indicated that the wife is entitled to the costs of and incidental to the application filed on 14 July 2009 and the attendance today.

24. In relation to the question of the costs of the attendance at the previous hearings and preparation of the matter generally, in my view it is not appropriate to consider that question of costs at this stage, but I will adjourn further consideration of the wife’s application for costs of those hearings and of that work done by counsel and solicitors in preparation for those matters to myself at the conclusion of the trial in this matter.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  13 August 2009