Meadows and Meadows

[2018] FamCA 420

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS [2018] FamCA 420

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks the appointment of a single expert auditor and disclosure of documents by the husband – Where the wife did not provide evidence of the cost of a report or the identity or qualifications of any person who would prepare the report – Where the wife did not seek the husband’s agreement for appointment of a single expert – Where the Court could not identify precisely what additional documents the wife required by way of disclosure –  Application dismissed.

Family Law Rules 2004 r 15.5(1)

APPLICANT: Ms Meadows

RESPONDENT: Mr Meadows

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 21 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with by written submissions

REPRESENTATION

THE APPLICANT: Ms Meadows submitted for and on her own behalf

THE RESPONDENT: Mr Meadows submitted for and on his own behalf

INDEPENDENT CHILDREN’S LAWYER Ms Weate

Orders

1. The Application in a Case of the wife filed on 5 April 2018 is dismissed.

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 Meadows & Meadows 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 SYDNEY

FILE NUMBER: PAC 3509  of 2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

And

Independent Children’s Lawyer

Jennifer Weate & Associates

REASONS FOR JUDGMENT

The proceedings

1. Ms Meadows and Mr Meadows are parties to litigation concerning parenting orders and financial issues.  A number of orders were made on 14 November 2017, including the following:

   10.At the mother’s request the court orders that the father, within 21 days, provide to the mother complete financial disclosure as required by the Family Law Rules 2004. All documents provided for inspection by way of disclosure are to be catalogued and that list provided to the mother within the said 21 day period.

   11.Within 14 days of a receipt of the list of documents being provided to her for disclosure, pursuant to order (10) hereof, the mother is to make an appointment with the father’s solicitors to inspect the documents disclosed, if the documents have not been provided to her as photocopies of same thereby negating the necessity to attend upon the father’s solicitor’s office.

2. Additionally on 14 November 2017, interim orders were made which suspended earlier Orders of 10 January 2017 for the parties’ child B born in 2011 to spend time or live with the mother on an unsupervised basis.  The Orders of 14 November 2017 provided that the child spend time with the mother at a contact centre.  The mother has not spent time with the child in accordance with these Orders.

3. On 5 April 2018 the mother filed an Application in a Case, by which she sought the following Orders:

   1.That an Order be made that the Orders 1, 2, 3, 4, 5 and 8 made by Justice Le Poer Trench on the 14/11/2017 be dismissed.

   2.That [B] ‘live’ with the Mother Ms Meadows pending Final Orders being made in June 2018;  failing that Order 3 and 4 below be implemented, pending the Final Hearing Orders to be made in June 2018.

   3.That the Mothers time be reinstated as per the orders of 10/01/2017 of Judge Kemp of the Federal Circuit Court with the exception of Order 5 of those Orders, pending final orders.

   4.That an Order for the Easter school holidays 2018 be made that the child, [B] spend the whole of the Easter Holidays with the Mother as part make up time, starting from the end of the school term on the 13 April 2018 and returning to the Father on the 30 April 2018 at 6:30pm at the changeover location of BP at [N Town] NSW.

   5.That an Order be made for a single expert auditor to be appointed by the court to examine the financial circumstances of that of
   [Mr Meadows] and [L Pty Ltd].

   6.That as per section 77 of the Family Law Act 1975 urgent spousal maintenance be granted to the Mother [Ms Meadows] in the lump sum of $12,000 from the Financial Resources available to [Mr Meadows] within 7 days of the date of this order.”

4. The substantive proceedings are listed for trial before me for five days commencing on 18 June 2018.  The mother has filed an appeal against the Orders which suspended unsupervised time with the child the child.  At the time of the interim hearing on 16 April 2018 and 24 April 2018, no date had been fixed for the hearing of this appeal.

5. On 16 April 2018 and/or 24 April 2018 I indicated that I was not prepared to entertain the mother’s application for “reinstatement” of the Orders of 10 January 2017, which provided for unsupervised time with the child the child.  I took the view that I could not do so while the mother’s appeal is extant and undetermined and where she indicated that she intends to proceed down that path.  Additionally, I took the view that it was not appropriate to entertain the mother’s application for variation of interim parenting orders in circumstances where final hearing dates were a matter of weeks into the future.

6. On 16 April 2018 and/or 24 April 2018 I pointed out to the mother that her application for urgent spouse maintenance in a lump sum of $12,000 was compromised by her failure to file an updated Statement of Financial Circumstances.  Her most recent Financial Statement had been sworn some months previously and there was no evidence to update the mother’s economic circumstances.

7. Accordingly, there remained the issues of the appointment of a “single expert auditor … to examine the financial circumstances of that of [Mr Meadows] and [L Pty Ltd]” and disclosure of documents by the husband.  The wife offered no evidence as to any expert who would be able and willing to take on such an appointment, nor of the cost of that proposed report.

8. The father claimed that he has provided to the wife all requested documents which exist and are in his possession and control.  The wife handed up a list of documents which she said that she has requested by way of disclosure.

9. Due to shortness of time on 24 April 2018 I directed that the father file and serve a response to the mother’s list of requested documents.  I directed that he indicate what material he could produce or otherwise provide a basis for

   
   

   non-production.  I directed further that the mother file and serve written submissions in relation to the appointment of an “independent auditor” and the proposed source of funds to pay for such an expert.  The mother indicated that she could do so within 48 hours.

10. I did not grant leave to the mother to file an updated Financial Statement, nor to put any submissions in relation to interim parenting issues.  Nonetheless the mother purported to do both in her written submissions, which were accompanied by 584 pages of annexures.

11. I indicated on 24 April 2018 that I would make a determination of the issues of financial disclosure and appointment of a “independent auditor” in chambers, on the basis of written submissions.  I now proceed to determine these two issues.

Consideration

Independent auditor

1. The wife submitted a document dated 29 March 2018 entitled “Re:  Audit for [L Pty Ltd]”.  This document read in part as follows:

   “…

   The following is one company that has been located whom is able to provide external audits on your financial situation with L Pty Ltd for court purposes.  I have requested an estimate for an audit to be conducted on 1 year of the company operations.  I am awaiting this advice:

   [M Accountants]
   …
   …
   Sydney NSW …
   Phone …
   Fax: …
   Email: …

   …”

2. There was no evidence as to the identity or qualifications of any person within this organisation who would prepare an expert report as proposed by the wife. There was no evidence that the wife has sought the husband’s agreement for the appointment of a single expert witness for the purposes of Chapter 15 of the Family Law Rules. The wife has made no application for permission to rely upon an expert report pursuant to Rule 15.5(1). There was no evidence as to the likely cost of such a report.

3. For these reasons I am not prepared to make any orders in relation to the appointment of an expert who would conduct an enquiry into the financial affairs of the husband and/or L Pty Ltd.  Accordingly, it is unnecessary that I consider whether the husband has the financial capacity to fund such a report and whether it is just and equitable that he do so.

Financial disclosure and provision of documents by the husband

1. The wife submitted four documents, dated 30 January 2018, 7 February 2018, 27 March 2018 and 27 March 2018, which set out documents sought by her from the husband.  These documents read relevantly as follows:

   “  Tue, Jan 30  4:24 PM

   [Ms Meadows]
   To  [Mr Meadows]
   Cc  [Ms Weate]
   Property Matters: Financial Disclosure
   To [Mr Meadow]s,
   PAC3509/2013
   [Ms Meadows v Mr Meadows]
   Child: [B]

   Re: Family Law: Property Matters

   As per the orders of Justice Mark Le Poer Trench dated 14/11/2017 in regards to Orders 12 and given your recent statements to the court as at the First Day of the Less Adversarial Trial regarding the operations of [L Pty Ltd] and your individual financial situation statements please provide the following documentation and particulars in regards to the following:

   1/ Rental income received on the property situated at [O Street, Suburb P] NSW …for the period 2012-2018.

   2/ Rent/Rental Receipts/Bond Lodgements being or that have been paid by [Ms F] as to rent she is paying on the property at [O Street, Suburb P] NSW … for the period 2016 to present.

   3/ Original copy of Purchase Records for the motor vehicle … owned by [L Pty Ltd]

   4/ Original copy of Sales receipts for the [4WD] which had Registration number … and was owned by [L Pty Ltd]

   5/ Original purchase or sales records for any and all other vehicles owned by [L Pty Ltd] and bought or sold during 2010-2018.

   6/ Any and all documentation or notifications from the ATO (Australian Taxation Office) and any other documents or notifications of legalities or ceasing to trade involving [L Pty Ltd] including but not limited to documents pertaining to investigations or appointment of receivers (if any).

   7/ Rental or board Receipts and bank statements of evidence of payment of bond or rent to [Ms Q Meadows] during the period 2012 to 2015.

   8/ All Invoices of L Pty Ltd period from 6 December 2014 to present date 30/1/2018.

   9/ Valuation Certificate of [the Utility motor vehicle] owned by [L Pty Ltd]

   10/ 2016 Financial year company tax records for [L Pty Ltd] including depreciation schedules, profit & loss statements, Company tax returns, bas/gst lodgements, special purpose financial reports, tax disposal schedule, profit adjustment schedule, tax agent portal summaries

   11/ For [Mr Meadows]- Notice of assessment and individual tax return for the year ended 2016

   12/ For [Mr Meadows]- Notice of Assessment and individual tax return for the year ended 2017

   13/ 2017 Financial Year Company tax records for [L Pty Ltd] including special purpose financial reports, depreciation schedules, profit & loss statement, company tax returns, bas/gst lodgements, tax disposal schedule, profit adjustment schedule, tax agent portal summaries.

   14/ Current Itemised list of all tools, goods, office furniture, vehicles or machinery owned or hire-purchased or otherwise in the name of [L Pty Ltd].

   15/ Company statements, bas lodgements, tax agent portal activity statements and financial records to present date for purposes of tax year ending 2018 (upcoming) for [L Pty Ltd].

   16/ Employee/contractor/consultancy/associate contract records, itemized record of payments, payment details and payroll records of [L Pty Ltd] for the period 2010-2018.

   17/ Business to Business contract details/documentation of [L Pty Ltd] and contact details of the service providers whom have been invoiced by [L Pty Ltd].  Where and if no contract exists between the companies the contact details of the management/directors of all companies whom have paid, employed or contracted or utilized the services of [L Pty Ltd] and/or [Mr Meadows] between the period of 2009 till 2018.

   Regards
   [Ms Meadows]
   …
   …
    “Property Matters: Financial Disclosure
   [Ms Meadows] <…>
   Wed 7/02/2018  10:18 AM
   To [Mr Meadows…]>;
   …;
        3 attachments (653 KB)
   …
   To [Mr Meadows]
   Cc: [Ms Weate]
   PAC3509/2013

   [Ms Meadows] v [Mr Meadows]

   Re: Property Matters: Financial Disclosure:

   As per the below email dated 30/1/2018 and as court ordered on 14/11/2017, it is required that you complete financial disclosure and you have been furnished with a list of documents outstanding.

   Since the Orders of 14/11/2017 you have been requested to complete financial disclosure by forwarding the documents by mail as per my email to your legal representative at the time [Ms R] (email to [Ms R] dated 19/11/2017 at 9:43pm). (Copy of email attached)

   A further 2 emails were forwarded to your legal representative [Ms R] requesting specific documents to forwarded at that time on 27/11/2017 at 11:57pm & 11:29pm (Copy of emails Attached). (Note: These emails were also mailed).

   I have still not received that financial disclosure which is causing unnecessary delay. Please forward the documents by close of business Wednesday 14/2/2018 5pm.

   Regards
   Ms Meadows
   …
   …
    “  Tue, Mar 27  8:54 AM
   [Ms Meadows]
   To  [Mr Meadows]
   No subject
   To [Mr Meadows],

   PAC3509/2013

   [Ms Meadows] v [Mr Meadows]

   Financial documentation still not disclosed since 2014.

   1/ Evidence of the damages of the vehicle [4WD] in which you advised you needed to buy a new car to replace

   2/ Sales receipts and who the car [4WD] was sold to

   3/ Board/Rental Receipts or evidence of money that you alleged was paid to your Mother for living in her property

   4/ A complete listing of all tools and assets of the company [L Pty Ltd].

   5/ Evidence of rent paid by [Ms F] for herself and the child [G] whilst being in the former Matrimonial home in which there are terms of agreement on the property. Given their occupation of the home would be cause undue wear and tear on the property that would otherwise not be occurring.

   6/ Evidence of where you requested permission from me for [Ms F] and the child [G] to move into the property when there was terms of agreement on that property. I would be happy to accept a statement that you did not request such permission. This is against my permission.

   Regards
   [Ms Meadows]
   … NSW …
   …

   ____________________

   “  Tue, Mar 27  9:01 AM
   [Ms Meadows]
   to [Mr Meadows]
   Financial Disclosure (Part 2)
   To [Mr Meadows],

   Further financial evidence required for disclosure:

   1/ Evidence of the items purchased/bills paid with the money that was taken from the redraw facility of the home in February 2014 and not repaid to that mortgage facility.

   2/ Evidence as to what was paid for/purchased or otherwise with the long service leave accrued during the marriage

   3/ We have asked several times that you supply the details of your past employer/whom you were contracted to.

   Regards
   [Ms Meadows]
   … NSW …

1. The husband responded to the wife on 20 April 2018 by a letter, which read as follows:

   “Dear Ms Meadows

   I refer to the last court appearance before the Honourable Justice Stevenson on 16 April 2018. I note that her honour asked that I respond to the mothers request for financial disclosure within 7 days and that I send it to her associate.

   In response to the email received from the mother dated 7 February 2018. I respond to each point 1-18. I have also attached copies of emails to the mother dated 7 December 2017 and 12 February 2018 and an itemised tool list.

   1)I have not received any rent for the property at [O Street, Suburb P]. The mother may have paid some rent/board to me between February and May 2014 I do not have evidence of that and cannot recall given it was a short period of four years ago.

   2)[Ms F] my fiancé does not pay me rent.

   3)Refer to document sent to the mother 12 February 2018.

   4)I do not have a sales receipt for the [4WD] which was sold in 2014, this was also listed on my financial statement dated 5 December 2014.

   5)There are only two vehicles registered to [L Pty Ltd]. Details for both vehicles was sent to the mother 12 February 2018.

   6)There are no documents in relation to [L Pty Ltd] ceasing to trade.

   7)This evidence can be found in bank statement Number …8, Account Number …11, which was already supplied to the Mother at Court 24 February 2015. See point 38 in letter from S Lawyers sent to the mother 5 December 2017.

   8)Supplied 12 February 2018, refer to letter to mother dated 12 February 2018.

   9)I do not have a valuation certificate for the [Utility] ...

   10)Supplied to the mother, see letter dated 12 February 2018.

   11)Supplied to the mother, see letter dated 12 February 2018.

   12)Supplied to the mother, see letter dated 12 February 2018.

   13)Supplied to the mother, see letter dated 12 February 2018.

   14)See tools list attached which was sent to the mother in 2015.

   15)I do not have these, as my accountant will do this at the end of the financial year, June 2018.

   16)I only have what has already been supplied to the mother. I have never had contracts, as I simply work for other companies at an hourly rate.

   17)I have worked for [T Pty Ltd] and [L Pty Ltd] since 2014 contracting at an hourly rate. My contact there was [Mr U]. (email…)  Previous companies that I have worked for, I no longer have contact with.”

2. The husband also submitted a letter to the wife dated 12 February 2018, which responded to her email of 7 February 2018, a list of “tools and other assets” of L Pty Ltd as at 31 May 2015 and a letter from his former solicitors to the wife dated 5 December 2017.  This letter set out a schedule of documents which had been supplied to the wife or which could be provided upon her request.

3. The volume of documents annexed by the wife to her submissions would suggest that she is in possession of a considerable amount of material in relation to the financial circumstances of the husband and the company L Pty Ltd.  These documents include tax assessments, a company extract, invoices issued by L Pty Ltd, mortgage statements, vehicle finance statements, loan account statements, credit card statements, company bank statements, the husband’s bank statements and pay slips for the husband.

4. It was in fact difficult to identify precisely what additional documents the wife requires from the husband.  The written submissions of the wife did not really assist in that exercise.  Ultimately I find it very difficult, if not impossible, to formulate meaningful orders for production of particular additional documents by the husband.

5. For all of these reasons, I dismiss the Application in a Case filed by the wife on 5 April 2018.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 21 May 2018.

Associate: 

Date:  21 May 2018