OTHONOS and COSTA-OTHONOS
[2022] FCWA 189
•12 SEPTEMBER 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: OTHONOS and COSTA-OTHONOS [2022] FCWA 189
CORAM: TYSON J
HEARD: 27 JUNE 2022
DELIVERED : 12 SEPTEMBER 2022
FILE NO/S: 9394 of 2019
BETWEEN: MR OTHONOS
Applicant
AND
MS COSTA-OTHONOS
Respondent
Catchwords:
FAMILY LAW – Expert Evidence – Where orders were made by consent for the appointment of a Single Expert Witness with respect to the wife’s health and income earning capacity – Where the husband seeks permission to appoint an expert, other than the Single Expert Witness – Where the husband has failed to comply with the relevant Rules with respect to putting questions to the Single Expert Witness – Where orders are made extending the time in which the husband is to pose questions to the Single Expert Witness, and his application to appoint an expert is adjourned – Where each party seeks orders for the appointment of an expert to provide actuarial evidence – Consideration as to whether the expert evidence is necessary to resolve or determine issues in the case – Case turns on its own facts
FAMILY LAW – Where orders were made for the husband to pay a lump sum to the wife – Where those orders were set aside on appeal and remitted – Where the wife seeks to retain the lump sum by way of partial property settlement or lump sum spousal maintenance – Consideration of the relevant factors – Where orders are made for the wife to retain the lump sum by way of partial property settlement – Case turns on its own facts
FAMILY LAW – Disclosure – Where there are competing applications for disclosure – Where there are disputes as to the relevance and proportionality of the disclosure sought by each party – Case turns on its own facts
FAMILY LAW – Where the wife seeks orders on a final basis for both property settlement and spousal maintenance – Where the husband has filed a Financial Statement, but has not completed Part N – Where the husband opposes the wife’s application, on the basis he can satisfy any order which the Court may reasonably make – Where the Court is satisfied the husband should file an amended Financial Statement – Case turns on its own facts
FAMILY LAW – Costs – Where the wife seeks lump sum costs – Where the assets owned by the husband are significantly greater than the wife – Where the issue of contributions is disputed – Where the wife’s future needs are contentious – Where both parties have incurred significant costs to date – Where the application is declined – Case turns on its own facts
Legislation:
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr Penglis SC |
| Respondent | : | Mr Hedges SC |
Solicitors:
| Applicant | : | Crossing Family Lawyers |
| Respondent | : | O'Sullivan Davies Lawyers |
Case(s) referred to in decision(s):
Andreas & Gabris [2021] FedCFamC1A 24
Atkins & Hunt and Ors (2018) 57 Fam LR 128
Benson & Drury (2020) FLC 93-998
Bevan and Bevan (1995) FLC 92-600
Blandford & Esmore [2022] FedCFamC1A 67
Briese and Briese (1986) FLC 91-713
Carmel-Fevia & Fevia (2010) 43 Fam LR 405
Chang v Su (2002) FLC 93-117
Clauson and Clauson (1995) FLC 92-595
Cook & Langford (2008) FLC 93-374
Dickons & Dickons (2012) 50 Fam LR 244
Harris and Harris (1993) FLC 92-378
Jabour & Jabour (2019) FLC 93-898
Livesey v Jenkins [1985] AC 424
Morrison and Morrison (1995) FLC 92-573
Osferatu & Osferatu (No 3) [2013] FamCA 1035
Othonos and Costa-Othonos [2021] FCWA 142
Othonos and Costa-Othonos [2022] FCWA 16
R & R [2009] FCWA 116
Salmon and Ors & Salmon [2020] FamCAFC 134
Simonsen & Simonsen [2009] FamCA 698
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
TYSON J:
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Othonos and Costa-Othonos has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
1 The applicant husband, [Mr Othonos], and the respondent wife, [Ms Costa-Othonos], are unable to agree on orders by way of alteration of property interests, following the breakdown of their marriage. Before the Court are a number of competing applications, from which I am required to determine the following:
Firstly, the “remitter issue”. [In] March 2021, orders were made for the husband to pay $298,230 (“Lump Sum”) to the wife. Those orders were successfully appealed, and set aside. The husband seeks the Lump Sum be repaid, by way of restitution. The wife seeks to retain the Lump Sum by way of either partial property settlement, or lump sum spousal maintenance.
Secondly, should the husband be required to file an updated Financial Statement, completing Part N, setting out his average weekly expenses?
Thirdly, should the husband pay $300,000 to the wife by way of costs?
Fourthly, competing applications for disclosure.
Finally, competing applications with respect to the appointment of Single Expert Witnesses. The husband seeks leave to appoint [Dr J] to prepare a report with respect to the wife’s health and its impact on her income earning capacity, in circumstances where [Dr E] has been appointed as the Single Expert Witness. Each party also seeks orders for the appointment of an actuary to provide expert evidence, on differing terms of reference.
2 The husband relies upon his affidavits filed 20 August 2021 and 11 May 2022, and his Financial Statement filed 11 May 2022. The wife relies upon the affidavits of [Ms K] and [Mr L] filed 1 September 2020, her Financial Statements filed 1 September 2020 and 27 April 2022, and her affidavits filed 1 September 2020 and 27 April 2022, together with the husband’s affidavit, Financial Statement and Minute filed 29 September 2020, in addition to the documents tendered on 1 December 2020, marked exhibit A1. Each party also relies on their Undertaking as to Disclosure filed 13 June 2022.
3 The parties also rely on the affidavit of Dr E filed 29 September 2020, and the affidavit of [Mr M] filed 5 April 2022. A number of documents were tendered by way of exhibits.
4 I have read and carefully considered all the evidence. I have not referred to all of the evidence because it is neither necessary, nor practical, to do so. I have also had the benefit of written submissions filed by each party,[1] in addition to the oral submissions made by senior counsel.
BACKGROUND FACTS
[1] The wife’s written submissions filed 11 May 2022 and 10 June 2022, and the husband’s written submissions filed 4 May 2022 and 16 May 2022.
5 In Othonos and Costa-Othonos [2021] FCWA 142 (“August Reasons”) and Othonos and Costa-Othonos [2022] FCWA 16 (“January Reasons”), I set out the background facts and a brief summary of the current litigation. I incorporate and adopt those Reasons.
6 For present purposes, it is sufficient to record the husband is 74 years of age and the wife is 59 years of age. The parties met in 2016, married in 2017, and separated in 2019. They have since divorced. At the commencement of the relationship, the husband was a man of significant wealth, and in a vastly superior financial position than the wife.
7 In April 2017, the husband purchased [Property A] (“the former matrimonial home”) in the wife’s name. During the marriage, the parties conducted works on the former matrimonial home.
8 The husband is [a director] and deposes to receiving income of E$19,069 each week. The wife is unemployed and deposes to being in poor health. She is a qualified [holistic health practitioner]. The wife deposes to having income of $8,406 each week, comprising of interim spousal maintenance by the husband of $7,500, and the balance by way of dividends and rent.
9 There are significant factual issues in dispute, including the value of the respective property of the parties, the assessment of each party’s contributions (including the wife’s Kennon argument[2]), and whether there should be any adjustment on account of s 75(2) factors, amongst other matters.
[2] Benson & Drury (2020) FLC 93-998.
10 The husband deposes to having net property to the value of $305 million, which the wife does not accept. The wife deposes to having net property, inclusive of the former matrimonial home, to the value of $7.4 million. There is no property jointly owned by the parties.
11 The parties are polarised in their positions. The husband seeks on a final basis,[3] a declaration pursuant to s 78 of the Family Law Act 1975 (Cth) (“the Act”), that neither party has a right to any property in the possession or control of, or in the sole name of, the other party, subject to his claim for the wife to repay the Lump Sum and for him to retain a motor vehicle and certain chattels currently in the wife’s possession. He seeks each party be responsible for their own liabilities, and for the wife to pay and indemnify the husband for “each liability arising from or relating to work done upon, or services provided at or in relation to” the former matrimonial home.
[3] The husband’s Further Amended Form 1 Initiating Application filed 24 February 2022.
12 The wife seeks orders by way of alteration of property interests, and spousal maintenance.[4] She seeks to retain the former matrimonial home, [Property B],[5] together with the property in her name and for the husband to pay to her “$21,600,000.00, or any other amount which provides an overall adjustment to the Wife of 10% or a total adjustment of $26,000,000.00, whichever is higher”, together with lump sum maintenance of $7,400,000.00, or alternatively $8,125 per week.[6]
Application to adjourn
[4] The wife’s Form 1A – Amended Response to Initiating Application filed 1 September 2020.
[5] The Wife’s Form 1A erroneously refers to the property as [redacted].
[6] Or such other figure as the Court deems appropriate.
13 The husband made an oral application, to adjourn his application to appoint Dr J as his expert witness, which was opposed. After hearing submissions, I declined the application, and indicated I would provide reasons in writing.
14 The husband’s application to appoint Dr J was filed in August 2021, and was listed for hearing in May 2022. That hearing was vacated upon the husband’s application, and orders were made for the wife to file and serve written submissions, including to address, amongst other matters, the husband’s application to appoint Dr J. The wife did so.
15 The husband’s senior counsel advised the husband intended to file an application seeking the discharge of Dr E, which he had foreshadowed in May 2022, and the submissions in support of that proposed application, were related and inextricably interwoven with his application to appoint Dr J.
16 At the time of the hearing, no such application had been filed. The husband’s senior counsel conceded he was in a position to proceed with his application. The husband filed detailed written submissions in support of his application concerning Dr J. Both parties understood the application was listed for determination. In the circumstances, I was not satisfied the adjournment should be granted. I was satisfied it was procedurally fair to proceed, and there was no prejudice to the husband in doing so.
REMITTER ISSUE
17 [In] March 2021, the Court ordered the husband to pay the Lump Sum to the wife within 28 days, with such amount to be characterised by the Trial Judge. [In late] March 2021, the husband filed a Notice of Appeal, from the orders including the payment of the Lump Sum.
18 In April 2021, the husband sought the wife’s agreement to either accept the Lump Sum into her solicitor’s trust account, or undertake not to spend the funds other than for preserving and maintaining the former matrimonial home. [In mid] April 2021, the husband paid the Lump Sum directly to the wife.
19 The appeal was heard in June 2021,[7] and in September 2021, orders were made setting aside the orders for the payment of the Lump Sum to the wife, and the proceedings were remitted for further hearing.
[7] See Andreas & Gabris [2021] FedCFamC1A 24.
20 The wife has retained the Lump Sum,[8] which she seeks to retain, by way of partial property settlement, or lump sum spousal maintenance. The husband seeks the Lump Sum be returned to him. I propose to firstly consider the wife’s application to retain the Lump Sum by way of partial property settlement. If I resolve that issue in favour of the wife, it is unnecessary to consider the husband’s claim for restitution, and the wife’s claim for lump sum spousal maintenance.
Partial Property Settlement
[8] Noting the wife says her evidence is she has not disposed of the money save for a period when those funds were drawn on and subsequently topped back up.
21 The wife sought the Lump Sum to meet the renovation costs for the former matrimonial home.[9] She deposes the husband commissioned and paid $230,000 towards work on the former matrimonial home. She asserts the husband instructed the builders to conduct further work, outside of the scope of the initial quote, which the builders commenced, but the husband then refused to pay. The wife has paid around $160,000 to meet the further costs, which have not been completed.
[9] The wife’s Form 1A – Amended Response to Initiating Application filed 1 September 2020, Annexure B, paragraphs 2 and 3.
22 The wife has obtained a quote,[10] which is corroborated by the builder, Mr L.[11] The further works are estimated to cost $298,000, including the rebuilding of the lower deck to “make [it] safe due to noncompliance and disrepair”, remediation and rectification of water damage, repairs to the swimming pool, and house maintenance.
[10] The wife’s affidavit filed 1 September 2020., Annexure W.
[11] Affidavit of Mr L filed 1 September 2020.
23 The wife says the former matrimonial home, being a large property in a coastal location, is in a state of disrepair, she cannot afford to meet the costs of repairs and maintenance, and seeks the Lump Sum for that purpose. The wife says the works are necessary to maintain and preserve the former matrimonial home.
24 The wife has not expended the Lump Sum to date, at the request of the husband, in light of the appeal and subsequent remitter. The wife says the evidence of Mr M,[12] the Single Expert Witness who valued the former matrimonial home, is not inconsistent with her position that works are required. She observes Mr M commented on various issues, including water damage to the property, and recommended a tradesperson identify the causes and extent of the issues, noting the valuation assumes there are no structural issues or otherwise which could impact on the property’s value.[13]
[12] The affidavit of Mr M filed 5 April 2022, Annexure A, valuation of the former matrimonial home.
[13] The affidavit of Mr M filed 5 April 2022, Annexure A, valuation of the former matrimonial home, page 4.
25 The wife submits the husband does not take issue with her claims he commissioned the renovations, and there is no dispute the husband can meet the amount she seeks by way of partial property settlement. She accepts the husband made overwhelming financial contributions during the marriage, but says she made financial contributions, non-financial contributions, and homemaking contributions during the marriage, and now suffers from poor health, arising from events which occurred during the marriage.
26 Further, the wife says an adjustment in her favour is warranted on account of her s 75(2) factors, including the disparity in the income, property and financial resources of the parties, the impact her health has upon her capacity to work, and the parties’ standard of living, amongst other matters. The wife remains reliant on the spousal maintenance paid by the husband, and refers to the evidence of the Single Expert Witness, Dr E, which supports her assertion that her health prevents her from working in her chosen fields of expertise and experience.
27 The wife says relevant to the Court’s exercise of discretion and its overall consideration of justice and equity, is the fact the husband has previously made open proposals for her to retain the Lump Sum. She acknowledges that is no longer his case.
28 The husband opposes the wife’s application and has, at all times, contested the wife’s claim for the Lump Sum, for the purposes claimed. He says there is no evidence as to the need to perform the work as quoted, then, now, or at all.
29 The husband says his case is fortified by the wife’s own evidence and the evidence of Mr M, who did not form the view the former matrimonial home was in such a state of disrepair, to require immediate attention, as alleged by the wife.
30 The husband refers to the fact the wife has not used the Lump Sum. He says the wife can obtain and apply the Lump Sum only for the purpose she seeks and consequently, the lack of evidence to support the need, and her inaction with respect to affecting the work she claimed was necessary, defeat any notion the purpose exists.
What is the law with respect to interim property?
31 The power to grant an order for interim property, is found through a combination of ss 79 and 80(1)(h) of the Act. Section 79 is the source of power. Section 80 enables the making of the order.
32 The circumstances in which the Court can make an order for interim property is well settled, and familiar to the parties.[14] The Court must be satisfied it is appropriate to make an order, and it is just and equitable to do so. If so, then a case has been established for the making of a s 79 order. An exhaustive assessment of the s 79 considerations is not required.
[14] Andreas & Gabris [2021] FedCFamC1A 24.
33 In Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466, the Full Court observed at [132]:
In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
34 Justice Thackray, in his separate judgment, said:
224In every defended case one of the parties will claim they are entitled to a payment or transfer of property from the other party. In many cases the other party will acknowledge they are likely to be ordered to transfer property or make a payment. That, however, could not of itself be sufficient to make it appropriate for the Court to make an interim order. Circumstances may change radically during the course of proceedings, as has been seen with recent severe fluctuations in the market. The personal circumstances of the parties may change dramatically. Furthermore, although a party may anticipate ultimately being ordered to transfer property or make a payment, they may legitimately expect to obtain an order for costs against the other party which will be satisfied from funds or property that would otherwise have been transferred.
225These sorts of considerations provide a strong basis upon which the Court should maintain its traditional stance that there should ordinarily be only one hearing of disputes concerning alteration of property issues. I accept the submissions of senior counsel for the wife that something out of the usual course would need to be established before the Court could be expected to devote its resources to resolution of disputes about interim alteration of property interests. However, once the Court has determined that it is appropriate to embark upon the hearing of an interim dispute, it has no alternative other than to exercise (or decline to exercise) the power to make an interim order by application of the relevant provisions of the legislation.”
Considerations
35 I have already identified the purpose for which the wife seeks an order by way of partial property settlement, and the husband’s position that the renovations are unnecessary. It appears to be agreed that works initially conducted on the former matrimonial home were commissioned by the husband prior to separation. It is unclear, on the husband’s evidence, whether he approved the scope of the renovations, as claimed by the wife, or if the further works go beyond what was agreed and discussed.
36 At [8] and [10] above, I have referred to the evidence as to the parties’ respective financial circumstances. The wife deposes to having property to the value of $8.2 million, with liabilities of $771,077, inclusive of the $298,230 for the renovations to the former matrimonial home, and $435,499 to [Litigation Funder A], which I infer relates to the litigation funding.
37 The wife does not accept the husband’s evidence with respect to the value of his property and asserts he has property to the value of closer to $1billion. There is presently no cogent evidence to support the wife’s assertion. At this time, it is impossible for the Court to accurately assess the net property of the parties.
38 I have referred to the parties’ respective proposals on a final basis. In my view, the parties’ proposals are at polar opposites of the scale, in terms of possible outcomes and can be fairly described as respectively, their best-case scenario.
39 The evidence is highly disputed. The case presents some unusual factual circumstances, including the substantial wealth of the husband at the commencement of the parties’ relationship, and now, what can only be described as a short relationship, and the controversy with respect to the parties’ respective contributions, which render it difficult to make any sensible assessment of the parties’ contributions.
40 It is also difficult to ascertain what each party maintains in relation to s 75(2) factors, particularly the wife’s income earning capacity, her health, the impact the wife’s health has upon her ability to earn an income, and what a reasonable standard of living may be in the circumstances, given the disputed facts. These are issues that cannot be resolved until such time as both parties have had the opportunity to present all of the evidence for trial, and they and their respective witnesses are cross‑examined on that evidence.
41 Each party will no doubt adduce evidence in support of the orders they seek on a final basis, and submissions will be made on their behalf. The credit of the parties, in establishing the facts upon which they rely, will be critical, in the circumstances.
42 It is conceded the husband came to the relationship with significant wealth, and he made the overwhelming financial contributions. The wife’s case is she made contributions of substance, including financial contributions, but primarily her contributions were of a non-financial nature. I have referred to the wife’s Kennon argument,[15] which is denied by the husband. It is impossible to form any view about the family violence allegations, and whether the alleged conduct made the wife’s contributions significantly more arduous, given the fiercely disputed evidence.
[15] Benson & Drury (2020) FLC 93-998.
43 The wife is younger than the husband and says she is in poor health. The husband disputes Dr E’s evidence, and seeks to appoint his own expert, Dr J.
44 The husband enjoys a high income, and is able to meet his reasonable needs. The husband has conceded he can meet any reasonable order which may be made by the Court. There is a significant disparity in the property interests of the parties. The parties enjoyed a high standard of living throughout their relationship. The wife says she cannot comment on the husband’s standard of living since separation, given the limited evidence and disclosure. It appears likely the respective standard of living enjoyed by each party since separation is an issue.
45 I am satisfied the wife has an arguable case in relation to financial issues on a final basis. There is an element of complexity to the proceedings.
46 In turning to a consideration of the likely outcome, while the assessment of contributions and s 75(2) factors are often expressed in terms of a percentage, there is nothing in the Act that requires the Court to do so, and similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party.[16] In the present circumstances, the Court may determine it is appropriate to express assessments, and the outcome, in the form of a monetary sum,[17] to avoid the risk that in allocating a percentage, the Court loses sight of what that means in dollar terms.
[16] See, for example, Cook & Langford (2008) FLC 93-374, at 82,620 [69].
[17] For example, see Cook & Langford (supra), at 82,620 [69].
47 On the facts currently presented, and assessing as best I can the factors arising under s 79(4) of the Act, in my view, I consider the wife may reasonably expect to receive the property she has, together with a lump sum payment from the husband. It is impossible to be any more precise at this stage. I stress this assessment is for the purpose of this application only and in no way predetermines the final outcome of the property proceedings.
48 I accept the funds which the wife seeks by way of interim property, will be expended prior to the final hearing. Accordingly, there is a risk there will be no “asset” remaining from the funds from which an adjustment could be made.
49 The husband seeks the wife repay the Lump Sum, on a final basis and emphasises the fact he does not concede the wife is entitled to more than what she already has, as was the case in Strahan & Strahan (Interim Property Orders) (2011) FLC 93‑466.
50 Notwithstanding the husband’s position, the Lump Sum could be recovered on a final basis, in light of the wife’s property and financial circumstances, and is capable of being taken into account at the final hearing, a fact conceded by the husband in the appeal.[18] In any event, while the Court is required to act conservatively, the Court is not constrained to make interim partial property settlement orders, within the parameters of the final orders sought by the husband. As observed by Le Poer Trench J in Osferatu & Osferatu (No 3) [2013] FamCA 1035, at [166], to do so would invite litigants to make “outrageous applications seeking property division which has no real regard to Part VIII of the Act or the jurisprudence relevant to the Act”.
[18] Andreas & Gabris [2021] FedCFamC1A 24 at [12].
51 Taking into account the relevant considerations, I am persuaded to exercise my discretion in favour of the wife, and make an order for her to retain the Lump Sum, by way of partial property settlement. I consider such an order is just and equitable and otherwise proper.
52 I decline to make an order, to mandate the wife apply the Lump Sum towards the renovations, as sought by the husband. If an amount is ordered by way of partial property settlement, it is open to the party receiving that sum (in this case, the wife) to utilise that money as she sees fit. In rejecting the husband’s complaint on this point in the appeal, Strickland J, observed “the fact that the amount sought is calculated on the basis of the cost of finishing off the renovations, provides the “appropriate circumstances”, or “the proper case” for the orders to be made,[19] but cannot restrict or limit the use of the funds that are ordered to be paid”.[20]
[19] Harris and Harris (1993) FLC 92-378 at 79,928–79,929; Strahan & Strahan (supra) at [158] and [231].
[20] Andreas & Gabris [2021] FedCFamC1A 24 at [32].
53 For these reasons, the wife will retain the Lump Sum by way of partial property settlement. Accordingly, it is not necessary to consider the husband’s claim for restitution, or the wife’s application for lump sum maintenance.
SHOULD THE HUSBAND BE REQUIRED TO FILE AN UPDATED FINANCIAL STATEMENT?
54 Rule 200 of the Family Court Rules 2021 (WA) (“the Rules”) requires a party starting, or filing a response or reply to a financial case, to file a Financial Statement, and if a party is aware the completion of the Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars.
55 The Form 13 Financial Statement, including Part N, has been approved by the Chief Judge of the Family Court of Western Australia, for the purposes of r 200.[21] Part N is required to be completed if there is an application for maintenance, as is the case.[22]
[21] See Family Court Rules 2021 (WA) r 486(1).
[22] The wife’s Form 1A – Amended Response to Initiating Application filed 1 September 2020.
56 The wife has filed Financial Statements, including Part N.[23] The husband has not completed Part N in his Financial Statement, deposing “it would be onerous and costly to do so. While I oppose the orders being sought by [the wife] I have conceded that I have the capacity to pay maintenance to her if an order is made”.[24]
[23] For example, the wife’s Financial Statement filed 27 April 2022, and 1 September 2020.
[24] The husband’s Financial Statement filed 11 May 2022.
57 The wife’s solicitors requested the husband complete Part N. In reply, the husband’s solicitors wrote:
Similarly our client’s concession obviates the completion of Part N of our client’s [F]inancial [S]tatement. Although you state that it is not agreed that our client should be excused from completing his Part N ‘given [your] client’s ongoing application for periodical spousal maintenance’, spousal maintenance is determined on the basis of needs and ability to pay … Our client has conceded capacity to meet any reasonable financial order, we cannot see that his daily expenditure is relevant.
58 The husband has not sought to be excused from compliance with the requirement to complete Part N. While r 486(4) of the Rules provides strict compliance with an approved form is not required, and substantial compliance is sufficient, there was no suggestion the husband had substantially complied. As is plain from his evidence, the husband objects to doing so, on the basis of relevance, cost, and what he describes as an onerous obligation.
59 The Rules are subject to the overriding provisions contained in Part 1 of the Rules which include:
(a)The main purpose of the Rules is to ensure each case is resolved in a just and timely manner, at a cost to the parties and the Court that is reasonable in the circumstances of the case;[25]
(b)The Court must apply the Rules to promote the main purpose and actively manage each case including by ensuring that parties and their lawyers comply with the Rules and consider whether the likely benefits of taking a step justify the cost of that step;[26]
(c)To achieve the main purpose, the Court must apply the Rules in a manner that deals with each case fairly, justly and in a timely manner, that is proportionate to the issues in a case and their complexity, and the likely cost of the case, and that promotes the saving of costs.[27]
[25] Family Court Rules 2021 (WA) r 5.
[26] Family Court Rules 2021 (WA) r 6.
[27] Family Court Rules 2021 (WA) r 7.
60 Each party, and their lawyers, have a responsibility to promote and achieve the main purpose.[28]
[28] Family Court Rules 2021 (WA) r 8.
61 An application for spousal maintenance is made pursuant to ss 74 and 72 of the Act. Section 72 of the Act has two pre-requisites. Firstly, that the applicant (in this case, the wife) is unable to support themselves adequately, and secondly, the respondent (in this case, the husband) is reasonably able to maintain the applicant. Section 74 of the Act enables the Court to make such order as it considers proper and the Court must have regard to the provisions of s 75(2) of the Act.[29] In particular, the Court must take into account the income, property and financial resources of each of the parties,[30] the commitments of each of the parties which are necessary to enable them to support themselves,[31] and where the parties are separated or divorced, a standard of living that in all the circumstances is reasonable.[32]
[29] Refer to Bevan and Bevan (1995) FLC 92-600 at 81,979.
[30] Family Law Act 1975 (Cth) s 75(2)(b).
[31] Family Law Act 1975 (Cth) s 75(2)(d).
[32] Family Law Act 1975 (Cth) s 75(2)(g).
62 The husband’s weekly expenditure is material to the issues for determination including the Court assessing and considering the parties’ respective commitments to support themselves, as well as the standard of living which is reasonable in the circumstances. The husband’s concession he can meet any reasonable order which the Court may make, does not relieve him from the obligation to provide full and frank disclosure, including his average weekly discretionary expenditure, as required in Part N.
63 I do not accept the husband should be excused from completing Part N on the basis it would be costly, and onerous, to do so, given:
(a)The husband has spent nearly $800,000 in legal costs to date, from his own resources.[33] He continues to be legally represented, by experienced solicitors, and senior counsel. Based upon the husband’s cost notification, he will continue to be legally represented, and will incur substantial further costs, related to the proceedings. There is no suggestion the husband cannot afford such costs.
(b)The husband deposes to having an average weekly income of $19,069, and to incurring weekly expenditure of $36,330, of which, $26,923 relates to “other expenditure”, not captured in terms of his fixed expenditure on tax, superannuation, rates, levies, insurance premiums, and car registration. It is reasonable to infer, given the precise figure, that an itemised calculation has already been prepared, with respect to the expenditure which ought be contained in Part N.
[33] Exhibit 1, costs notification from [Law Firm A] dated 24 June 2022.
64 While completing Part N may be time-consuming, taking into account the main purpose of the Rules, and the issues in dispute, I am satisfied it is a task which the husband should undertake. I will order the husband file and serve, within 28 days, an Amended Form 13 Financial Statement, with a completed Part N or in lieu thereof, an affidavit which provides the information required by Part N.
DISCLOSURE
65 The husband seeks the wife provide documents as set out in paragraph 1 of his Application in a Case filed 20 August 2021, as amended. The list includes documents relating to (1) any income generated by the wife, including through [Business A], the operation of a [wellness facility] together with income generated by [Business B] or [Business C], (2) rates and utilities for properties owned by the wife, (3) the license and registration of motor vehicles registered in the wife’s name, (4) the receipt of the Lump Sum, (5) various bank statements, (6) monies owed to the wife by third parties, and (7) the wife’s health including claims history, medical records arising from the [redacted] incident, Medicare claims history, Pharmaceutical Benefits Scheme statement, and [surgery].
66 The wife seeks the husband provide documents as set out in paragraph 1 of her Response to an Application in a Case filed 27 April 2022 including (1) his income tax returns and notices of assessment from the financial year ended 30 June 2017 to date, and the financial statements and tax returns for each entity in which the husband has an interest, for the same period, (2) member benefit statements for the husband’s superannuation entitlements, (3) bank statements for each account operated by the husband or an entity under his control from 1 January 2017, and (4) correspondence between the husband and any private investigator including file notes relating to discussions between the husband’s solicitors and [Private Investigator A] on or around [mid] June 2021.
67 The duty on each party to disclose documents in their possession or control in relation to all relevant matters, has been described as fundamental to the operation of the Act.[34] The duty of disclosure is owed to the Court, and to the other party. The duty encompasses an obligation to disclose all relevant documents, and to disclose all material information.[35] The duty to disclose is absolute, and whether the failure to disclose is wilful or accidental, such failure may support the Court erring on the side of generosity to the party who might otherwise be disadvantaged by the lack of candour.[36]
[34] Briese and Briese (1986) FLC 91-713, cited with approval in Black & Kellner (1992) FLC 92-287.
[35] Livesey v Jenkins [1985] AC 424.
[36] Chang v Su (2002) FLC 93-117.
68 Part 13 of the Rules regulates disclosure between parties. Parties to a financial case must make full and frank disclosure of their financial circumstances, including their earnings, any interest in property including property owned by a legal entity or income generated from such an entity, which is controlled or owned by a party.[37]
[37] Family Court Rules 2021 (WA) r 199.
69 Each party has a duty to disclose documents within their possession or control, which are relevant to an issue in the case.[38] Where there is an application for maintenance, r 64 of the Rules requires each party to produce specific documents, including for the three most recent financial years, income tax returns and notices of assessments, both personally and for any entity in which either party has an interest, bank statements for the three years preceding the date the application was made, and “any other document relevant to determining the income, needs and financial resources of the party”.[39]
[38] Family Court Rules 2021 (WA) r 202.
[39] Family Court Rules 2021 (WA) r 64(1)(f).
70 In R & R,[40] in considering an application for disclosure, Thackray CJ stated:
… these matters are governed by the rules to which I made reference during the course of argument. Applications for disclosure really ought to pay attention to those rules. Following the amendments to the rules by which “disclosure” replaced “discovery”, there was a change of emphasis in the disclosure regime. Under the old arrangements parties apparently had an obligation to list and disclose to the other party every document that could conceivably have some possible relevance to the proceedings, whereas under the new arrangements, where there are disputes between the parties about disclosure, there is some onus falling on the applicant for disclosure to show relevance to the proceedings. The applicant also has to establish some proportionality in the obligation to provide all possibly relevant on the one hand, and the cost of providing the documents on the other hand.
[40] R and R [2009] FCWA 116 at [6].
71 While the decision predates the current version of the Rules, the remarks remain apposite.
72 There are serious consequences for a party who fails to disclose a document, as required pursuant to the Rules. Those consequences can include the dismissal of all or part of the party’s case,[41] the party may be guilty of contempt,[42] and may be ordered to pay costs.[43] A failure to disclose relevant documents, will ordinarily give rise to a miscarriage of justice.[44]
Conclusions
[41] Family Court Rules 2021 (WA) r 210(b).
[42] Family Court Rules 2021 (WA) r 210(a)(ii).
[43] Family Court Rules 2021 (WA) r 210(a)(iii).
[44] Morrison and Morrison (1995) FLC 92-573.
73 Turning to the husband’s application, the documents sought relate to the wife’s (1) income, and income earning capacity, including from investments and businesses operated by her, (2) expenditure, and (3) health, including medical conditions and treatment. The documents are plainly relevant to the issues in dispute. Taking into account the likely time, cost, and inconvenience involved in disclosing the documents, together with the impact of the disclosure in the case, I intend to order the wife to provide disclosure, as requested.
74 Squarely, the wife’s income, expenditure, and health are relevant to her application for an alteration of property interests, including an adjustment in her favour, pursuant to s 75(2) of the Act, and her maintenance claim.
75 Turning to the wife’s application, the wife submits she does not intend to obtain valuations of the husband’s property, she disputes his evidence and asserts the Court “may take the view that there is a significant difference between $305 million and $1 billion and, for that reason, an indication from financial statements and other relevant documents may be helpful”.[45]
[45] The wife’s further written outline of submissions filed 10 June 2022, paragraph 20.
76 The wife submits the majority of documents sought should have been collated by the husband or his accountants, for the preparation of income tax returns and financial statements, and thus, the husband complying with the order should not cause him hardship or prejudice.
77 The husband submits he has provided disclosure, including bank statements with respect to the parties’ joint expenditure during their relationship. In light of his concession, as to his capacity to meet an award in the wife’s favour, the husband asserts the wife’s request for further documents is “unnecessary, onerous and not proportional to the issue to be determined”.[46]
[46] The husband’s written submissions filed 16 May 2022, paragraph 35.
78 In Carmel-Fevia & Fevia (2010) 43 Fam LR 405, Cronin J considered an interim application by the wife for disclosure, in anticipation of a valuation of the husband’s property, in circumstances where the husband deposed he had net assets to the value of $268 million. The parties had been married for seven years, and had two children. The husband submitted the wife had not made contributions to the significant wealth he had at the commencement of cohabitation, and her contributions were largely defined by her role as a homemaker and parent. He disputed the wife’s entitlement was anywhere close to $35 million (as sought), but deposed he could meet whatever amount the Court may reasonably order.
79 The husband objected to spending time, energy, and costs on what he perceived to be an unnecessary exercise, and submitted there was no relevance in establishing his wealth precisely, by the provision of many documents, and also undertaking a complex valuation exercise. The husband filed an affidavit by a finance director, supporting the approximate value of his assets.
80 Justice Cronin recorded it was settled law that all parties had an obligation to the Court and to the other parties to make full and frank disclosure on matters which would enable the other party to know what to seek, and to enable the Court to determine the matters required of it, in s 79 of the Act, but stated “that means no more than that each party must provide information and documents relevant to the matters to be determined”.[47]
[47] Carmel-Fevia & Fevia (2010) 43 Fam LR 405, at [55]; Clauson and Clauson (1995) FLC 92-595; Morrison and Morrison (1995) FLC 92-573; Livesey v Jenkins [1985] AC 424.
81 His Honour went on to state, at [76]:
Proportionality is still important. The parties and the court have to have some idea of the size of the asset pool because otherwise the determination could be drawn into the “needs” - type approach for the s 75(2) factors or some form of “compensation” for contribution as a yardstick rather than an assessment of entitlement. Having said that, I do not accept that proportionality requires preciseness in a case of wealth of this magnitude.
…
[78]Ultimately, the approach of the court is a discretionary one: see Norbis v Norbis (1986) 161 CLR 513 … Thus, provided a trial judge can explain why an approach was taken, the discretion may be seen to have been properly exercised.
[79]My concern is that it is obvious that the wife needs to know as does the court, the husband’s financial position for the purposes of ultimately deciding whether or not the ultimate outcome is just and equitable. However, in a situation in which:
(a)the husband estimates his property entitlements at $268 million; and
(b)the wife is reliant upon a modest period of years for contribution and a very clear picture of what her future economic circumstance will be, this seems to be a case in which a fixed sum can be calculated to achieve a just and equitable outcome and that a proportional or percentage division is unlikely to be of any particular use. The husband therefore ought to provide sufficient detail to enable the wife to understand how he calculates his $268 million entitlement.
82 I respectfully agree with his Honour’s approach. The question is whether the documents sought by the wife are relevant to issues in dispute, the relative importance of the issues to which the documents indicate, together with the likely time, cost, and inconvenience involved in disclosing the documents, together with the likely effect on the outcome of the case.
83 The husband’s income tax returns and notices of assessment, his superannuation member benefit statements and the financial statements and tax returns for each of the companies and trusts set out in the schedule attached to his Financial Statement are relevant, and should be disclosed.
84 I am not persuaded the bank accounts for every entity under the husband’s control from 1 January 2017, is relevant, when, on a conservative basis, the husband has property to the value of approximately $300 million, and his open concession, he has the capacity to pay whatever amount the Court may reasonably order. I consider the time, cost, and inconvenience of the husband collating and disclosing a substantial number of bank statements, in light of the number of entities in which he has an interest, is disproportionate to the issues. The husband will be required to disclose the financial statements and income tax returns for the entities which is sufficient in the circumstances.
85 The bank accounts operated by the husband are relevant to his expenditure and standard of living. I will order he provide disclosure, as sought.
86 The wife’s request for disclosure concerning the private investigators’ surveillance conducted on the husband’s request was the subject of a previous application. The January Reasons, in support of the orders made on 4 February 2022, required the husband to disclose communications between him and his solicitors, which had been the subject of an express waiver. In the absence of any detailed submissions in support of the further documents sought, and in light of the orders previously made, I am not persuaded the husband has a duty to disclose the additional documents as sought.
SINGLE EXPERT EVIDENCE
Dr J
87 The husband seeks leave to appoint Dr J as his expert witness, to prepare a report as to:
(a)Whether, as a result of the wife’s health, the wife is unable to engage in paid employment or otherwise earn income;
(b)The details of any health problems from which the wife suffers, and if such problems affect the wife’s ability to engage in paid employment or otherwise earn an income; and
(c)The wife’s prognosis in respect of any health problems from which she suffers.
88 The relevant factual matters can be briefly summarised.
89 The wife deposes to suffering significant injuries in 2017, [due to an incident], causing permanent physical disabilities, and neurological problems. The wife deposes she suffers from [Psychiatric Disorder A], [and numerous medical symptoms]. She says she requires [surgery]. She has difficulty attending to day-to-day tasks. She experiences [numerous neurological symptoms].
90 The wife’s case is her health prevents her from working. The husband disputes the wife’s claims with respect to her health, and the impact her health has upon her capacity to engage in employment.
91 In April 2020, orders were made by consent, for the appointment of a Single Expert Witness to prepare an occupational health assessment of the wife’s current and future earning capacity. The parties agreed to appoint Dr E, and in August 2020, a joint letter of instruction was provided together with a list of agreed documents, including a statement of facts from the husband and the wife, various affidavits filed by each party in the proceedings, and surveillance footage conducted on the husband’s instructions.
92 Dr E examined the wife [in late] August 2020, and on the same date, he wrote to both solicitors, asking for additional documents,[48] which were provided by the wife’s solicitors.[49] The additional documents included a neuropsychological assessment report from [Dr N] and [Dr B] dated [late] February 2020, a report from [Dr O] dated [mid] February 2020, and a care and domestic assistance assessment from [Mr C] dated [late] March 2020.
[48] The wife’s affidavit filed 27 April 2022, Annexure 8.
[49] The wife’s affidavit filed 27 April 2022, Annexure 9.
93 Dr E prepared an initial report in early September 2020. The husband’s solicitors wrote to Dr E, observing the report did not fulfil the requirements in rr 15.62 and 15.63 of the Family Law Rules 2004 (Cth) (which then applied) and requested he do so. Dr E prepared a further report, dated 16 September 2020, which was attached to an affidavit filed on 29 September 2020.
94 The salient aspects of Dr E report can be summarised as follows:
•Dr E set out the wife’s work history, and medical conditions. He reviewed the documents in support of the wife’s reported injuries and medical conditions.
•Dr E recorded (1) the wife’s self-assessment she could not return to work “even for one day per month due to her physical and mental injuries”,[50] (2) the husband denied the wife suffered from any significant injuries from the incident in [mid] 2017, the husband’s denial of being aware the wife suffered any ongoing pain or medical treatment from that time, and the husband’s view the wife had normal functioning.[51] Dr E confirmed he had viewed the surveillance footage, which showed the wife walking her dog, and the wife’s acknowledgement she could walk up to two kilometres, with pain.
[50] Affidavit of Dr E filed 29 September 2020, Annexure A, page 5 of Dr E’s report.
[51] Affidavit of Dr E filed 29 September 2020, Annexure A, page 6 of Dr E’s report.
•He summarised the wife’s reported social history, and performed a physical examination of the wife, recording her range of movement. He did not perform a mental state examination, stating the wife was teary and upset throughout the interview and examination.[52]
[52] Affidavit of Dr E filed 29 September 2020, Annexure A, page 7 of Dr E’s report.
•In response to the question as to whether the wife’s health prevented her from maintaining paid employment, Dr E wrote:
[The wife] has a number of medical conditions now which are well documented. These conditions do impact on her work as a [redacted] and/or [holistic health practitioner]. There are restrictions in her physical capacity which would restrict her from performing many of the requirements of a [redacted] and [holistic health practitioner]. Her executive functioning appears to be impacted based on the neuropsychological assessment. She has also developed significant [neurological symptoms] in addition to her [Psychiatric Disorder A].
All of these would have a significant impact on her performing her normal work as a [holistic health practitioner]. Whilst she could possibly consult in the physical sense in regards to [holistic health practice], I understand there would be some issues with preparing and dispensing [alternative] medication, and also decision-making in terms of treatment. Thus from both the physical and psychological perspective, she cannot maintain paid employment in this area currently and into the immediate future.[53]
•Dr E concluded the wife’s medical conditions, both physical and psychological, impacted upon her day to day functioning, and her normal work activities. He concluded the wife was unable to engage in paid employment as a [redacted] and/or holistic health practitioner. He described the wife’s health conditions as chronic, requiring ongoing management without improvement or recovery, and her prognosis was poor. He considered the wife’s Psychiatric Disorder A was manageable and could improve.
[53] Affidavit of Dr E filed 29 September 2020, Annexure A, page 7 of Dr E’s report.
95 In February 2022, the husband’s solicitors complained about the wife providing the reports from Dr N, Dr O, and Mr C to Dr E, and advised the husband would object to Dr E’s report being admitted into evidence, in the absence of the author of each of the reports being available. The husband foreshadowed, if the wife sought to lead evidence from the deponents of those reports, he would seek leave to obtain his own expert assessment of the wife.
96 In August 2021, the husband wrote to the wife’s solicitors, asserting Dr E’s report was “fatally flawed”, such that “the [C]ourt cannot properly rely on it”, it failed to comply with the relevant Rules, and improperly relied on reports of supposed “experts” unilaterally instructed by the wife’s solicitors, filed in contravention of the Rules. The husband proposed Dr J be instructed, in similar terms as those provided to Dr E. He sought the wife’s consent to an examination and to release her medical records to Dr J. The wife did not agree, and suggested Dr E prepare an updated report prior to trial.
97 When making that request, the husband did not disclose the fact he had instructed Dr J to critique Dr E’s report, and received Dr J’s report dated [mid] November 2020. Dr J’s report was only disclosed to the wife in August 2021, when it was attached to the husband’s affidavit in support of his application.
What is the husband’s case?
98 The husband is critical of Dr E’s report, which he asserts fails to comply with r 288 of the Rules. The husband says Dr E has failed to: (1) set out the literature or material used, (2) provide the relevant facts, matters, and assumptions by not providing sufficient information about the nature of the work undertaken by the wife, and providing only limited information about each of the wife’s medical conditions, (3) provide any details of any physical examination, and (4) set out how he formed his opinions.
99 The husband asserts Dr E wrongly described the wife as suffering from a cognitive impairment, when the 2017 neuropsychological report concluded the wife does not suffer from such an impairment. He alleges Dr E has conflated the wife’s claimed head injury and Psychiatric Disorder A, as the source of any cognitive impairment.
100 The husband complains about the wife’s provision of various reports to Dr E, without his agreement, and Dr E’s reliance on those reports, which he asserts were prepared at the request of the wife’s then solicitors, without leave of the Court, and they are not from the wife’s treating practitioners.
101 The husband considers Dr E has relied on the wife’s self‑reporting, instead of conducting a proper assessment. He questions whether the wife disclosed her trip to a [redacted] resort, in the week before she was assessed by Dr E, a fact he disclosed to Dr J.
102 The husband relies on the report of Dr J, in support of his criticisms. As noted, Dr J was unilaterally instructed by the husband, and asked to assess Dr E’s methodology and conclusions drawn from the material available, noting Dr J would not meet with or examine the wife “which might impact on your ability to assess [Dr E’s] conclusions”.
103 Dr J stated Dr E’s report (1) provided limited information with respect to the wife’s medical conditions, (2) contained insufficient information to enable an assessment or understanding of the wife’s previous employment, and (3) indicated a limited physical examination was conducted. Dr J “struggled to understand” the basis of [Dr E’s] opinions and considered the report provided insufficient information to justify the conclusions. Dr J also raised a number of questions in terms of the wife’s health, her employment history, and the circumstances in which the wife ceased work.
104 The husband submits, given the alleged deficiencies in Dr E’s report, together with the wife’s claims about changes to her health since receipt of Dr E’s report, leave should be granted for him to appoint Dr J, on terms proposed, at his cost.
What is the Law?
105 Part 15 Div 5 of the Rules regulates expert evidence in proceedings pursuant to the Act. The purpose of Div 5 is expressed in r 268 as follows:
The purpose of this Division is ––
(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; and
(b)to restrict expert evidence to that which is necessary to resolve or determine a case; and
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness; and
(d)to avoid unnecessary costs arising from the appointment of more than 1 expert witness; and
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
106 Where a Single Expert Witness has been appointed, as is the case, the relevant rule with respect to additional expert evidence is r 274, which provides:
274 Appointing another expert witness
(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that –
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
107 I was not addressed specifically as to any of the matters contained in r 274(2) by the husband’s senior counsel and upon the evidence, I cannot be satisfied in that respect.
108 In Simonsen & Simonsen [2009] FamCA 698, it was said:
10.As r 15.49 makes clear, however, the circumstances in which an additional expert can give evidence or prepare a report, once a single expert has been appointed by the court, are somewhat truncated.
11.That is evident from the restricted nature of the two opening subparagraphs of r 15.49(2), and the requirement for the reason by which a court should be satisfied that the other expert witness or evidence is necessary, being “special”.
12.The general thrust of the Rules has been referred to by the Full Court in Bass & Bass (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. In simple terms, the word “special” as used in r 15.49 has real meaning.
13.It is important to understand that Pt 15.5 of the Rules does not preclude a party from obtaining on their own behalf expert evidence, nor does it preclude a party from obtaining such expert evidence, (including from more than one expert, should they so choose), in respect of all matters relevant to the proceedings before a court, and all matters relevant to a report and/or evidence produced by a single expert.
109 Rule 290 makes provision for the clarification of a Single Expert Witness’s report, by way of a conference pursuant to r 291 or by means of asking questions pursuant to r 292. The Full Court have made plain these processes should be utilised prior to making an application to the Court.[54] Justice Kent, with whom Aldridge and Ryan JJ agreed, observed, with respect to the equivalent provisions under the Family Law Rules 2004 (Cth) (as then applied) concerning expert evidence, as follows:
24.Underlying the whole of the [Family Law Rules 2004 (Cth)] is the statutory requirement in s 97(3) of the Act that the court endeavour to ensure that proceedings are not protracted. In pursuit of that requirement, r 1.04 expresses that the main purpose of the [Family Law Rules 2004 (Cth)] “is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Rule 1.06 mandates that the court must apply the [Family Law Rules 2004 (Cth)] to promote the main purpose.
[54] Salmon and Ors & Salmon [2020] FamCAFC 134 at [40] (Kent J)
110 In my view, the husband’s application is premature. Many of the matters which he complains of, should have been addressed through asking questions of Dr E, pursuant to the Rules. No explanation was provided for the husband’s failure to do so, notwithstanding the period of time since receipt of Dr E’s report, and since the husband’s receipt of Dr J’s report.
111 For instance, the husband queries whether Dr E was advised that the wife had been to a [redacted] resort prior to the assessment. That could be easily clarified by asking Dr E. Presumably, further questions may then arise about the relevance of that fact, and whether it impacts upon the assessment. Similarly, the husband’s queries about the extent to which Dr E relied upon other medical reports of the wife, and the wife’s self‑reporting, as opposed to his assessment of the wife, could be clarified through that mechanism. I am not persuaded the nature of the husband’s complaints and criticisms, which on his case, have contaminated Dr E’s report, should excuse the husband from utilising the procedures pursuant to the Rules.
112 I am unable to determine, on an interim basis, whether the reports the wife provided to Dr E were from her treating medical practitioners, and whether the wife had leave to file affidavits from those practitioners. The wife provided the reports at Dr E’s request, as she was obliged to do.[55] The provision of the reports was not subject to, or conditional upon, the husband’s consent.
[55] Paragraph 4 of the orders made by consent on 17 April 2020.
113 I propose to extend the period of time in which the husband can put questions to Dr E, pursuant to the Rules. If, after receipt of answers from Dr E, these matters remained unresolved, then the husband will have liberty to relist his application to appoint Dr J. I will therefore adjourn the husband’s application.
Actuarial Expert
114 Both parties seek orders for the appointment of an actuary, as a Single Expert Witness. They do not agree on who is to be appointed, or the proposed terms of reference.
115 The husband sought to appoint [Mr P], to provide a written report as to the income and expenditure of the wife for the periods:
(a)Prior to 26 February 2017;
(b)Between 26 February 2017 and 17 October 2019; and
(c)Since 17 October 2019;
as well as the quantum of a depleting capital sum that could be expended to provide for such expenditure for a period of:
(a)Three years;
(b)Five years; and
(c)10 years.
116 The wife sought to appoint [Mr Q] to provide a written report as to actuarial evidence with respect to:
(a)The wife’s life expectancy with regard to the relevant life expectancy tables;
(b)Calculation of a lump sum payment at present day value in relation to periodic maintenance at a rate of $7,500 and $15,000 per week, with such calculation to:
(i)Consider the lump sum amount on the basis that the referable periodic payment be made for the following periods:
A.three years;
B.five years;
C.10 years; and
D.to the conclusion of the wife’s natural life.
(ii)Operate on the basis that any lump sum amount paid to the wife will be received by her in her personal name and income generated by that sum would be taxed in her name; and
(iii)Assume the Consumer Price Index applies on the basis of indexation relevant to a resident in [City A], [State B].
117 In an effort to resolve these matters, the husband amended his proposals,[56] and now seeks orders which will provide:
(a)The parties to agree the appointment of a Single Expert Witness (utilising a similar process as that contained in the consent orders in April 2020, which led to the appointment of Dr E).
(b)The Single Expert Witness be requested to provide a written report, addressing the terms of reference proposed by each party.
(c)The husband will meet the costs of the Single Expert Witness, with the wife’s contribution to be determined at trial.
[56] Exhibit 3, correspondence from Law Firm A to [Law Firm C] dated 23 June 2022.
118 The husband did not consent to the terms of reference sought by the wife, but advised he would not oppose orders in those terms, if the Court considered they were appropriate. The husband’s senior counsel submitted the amended proposals would put each party “in a position where the [C]ourt has the evidence to run their respective cases at trial”, which he submitted was “good and sensible case management principles to facilitate the desires of both parties consistent with the purpose of the [R]ules”. The wife does not agree with the husband’s proposals.
Husband’s proposed terms of reference
119 The husband’s case is the Court will be assisted by the provision of actuarial evidence in relation to the wife’s claim for maintenance. In July 2021, the husband’s solicitors wrote, seeking the wife’s consent to the appointment of a Single Expert Witness, to provide financial analysis. He provided the names, resumes, and estimated costs for three proposed experts, including Mr P, to report on the wife’s income and expenditure prior to and during the relationship, her future income and reasonable expenditure, an analysis of the wife’s reasonable future income needs per week, and if the needs were met from a depleting capitalised sum, a quantification of that sum for three years, five years and 10 years.
120 The wife responded, advising “some sort of actuarial evidence may be required to address issues concerning [the wife’s] maintenance application”, but she did not agree with the husband’s proposals, or terms of reference.
121 Further correspondence failed to resolve the issues. The wife maintained details of her income and expenditure did not require expert evidence. The husband proposed the appointment of Mr P. The wife claimed to have not received information concerning Mr P’s costs and consent, which she had. The wife indicated she would make her own enquiries. There was no further correspondence until March 2022, when the wife then sought the appointment of Mr Q.
122 Mr P is a certified financial planner, and details of his qualifications and experience are contained in his resume. There was no serious criticism of his expertise, to provide an expert report as sought by the husband. Mr P has consented to the proposed appointment, agreed to the proposed terms of reference, and estimated his costs to be $10,080 – $13,920 plus GST.
123 The wife questions whether the husband has had undisclosed communications with Mr P, given her complaints about delays in the husband’s disclosure, throughout the proceedings.
124 The wife refers to her Notice to Admit filed [in] April 2020, which detailed her expenditure in 2019, and to further evidence which she has provided in her sworn material, about her expenditure in 2020.[57] The wife asserts the husband is effectively seeking an expert be appointed to conduct an audit of her expenditure and income, which is not appropriate or warranted. She says the husband, or those engaged on his behalf, can undertake that exercise if they wish.
[57] The wife’s affidavit filed 1 September 2020, Annexure P–Q.
125 The wife says it is open to the husband to challenge her evidence by way of cross-examination at trial. Should the husband wish to engage Mr P to assist in that exercise, he is free to do so, without requiring his appointment as a Single Expert Witness.
126 The wife acknowledges the husband proposes to meet the costs in the first instance, however, notes he is also seeking, on a final basis, a costs order in his favour.
Wife’s proposed terms of reference
127 The wife seeks Mr Q’s appointment to provide actuarial evidence, but says there may be “further actuarial evidence … required about other matters once my trial affidavit is complete”.[58]
[58] The wife’s affidavit filed 27 April 2022, paragraph 25.
128 Mr Q has consented to the proposed appointment, and provided a copy of his resume. The wife says she has no previous connection with Mr Q. Mr Q has estimated his report will cost $5,000 inclusive of GST, and he set out information he will require, including the wife’s date of birth, evidence with respect to the wife’s health, and her income, assets and superannuation entitlements.
129 Mr Q is a fellow of [Institute A], and a Senior Fellow of [Institute B], with details of his work experience and qualifications set out in his resume.
130The husband submits Mr Q lacks the necessary qualifications to provide the evidence as sought. That assertion is made without any explanation.
Discussions and conclusions
131 While there may be some attraction to the husband’s amended proposals, and the submissions that each party should be free to obtain the expert evidence they sought, and ultimately, it would be a matter for the Court as to the weight and admissibility of that evidence, that submission ignores the Rules, to which I have referred.[59]
[59] See [105] of these Reasons.
132 When Pt 15.5 of the Family Law Rules 2004 (Cth) was introduced (as was previously in force), which contains the equivalent rules with respect to single expert witnesses, the Explanatory Statement observed the problems which then existed in relation to expert evidence, which were being addressed on the:
[B]asic premise that an expert’s function is to assist the Court and there should be no expert evidence unless it will help the court and not more than one expert in any one specialty unless this is necessary for some real purpose.
133 The Explanatory Statement emphasised the Court may allow parties to instruct their own adversarial experts or more than one expert on an issue, where warranted, to ensure a fair trial. Those remarks remain apt.
134 The main purpose of the Rules, and the requirement of the Court to apply the Rules to promote the main purpose, do not require repetition.[60]
[60] See [59] of these Reasons.
135 The Rules provide expert evidence should only be obtained in relation to significant issues in dispute, and to those which are necessary to resolve or determine a case. I am not persuaded by the husband that the circumstances warrant expert evidence of the wife’s expenditure in the periods proposed, in order to determine what orders, if any, should be made by way of alteration of property interests between the parties, or by way of maintenance.
136 In my view, the proposed terms include an effective audit of the wife’s expenditure. The Court is not required to perform a mathematical or accounting exercise.[61] The Court has repeatedly warned of the dangers of doing so, and has been critical of those who engage in such a task.[62] That position has recently been re-stated in Blandford & Esmore [2022] FedCFamC1A 67, where Aldridge, Harper and Riethmuller JJ wrote at [14]:
It is not possible to minimise the “leap” from the qualitative to the quantitative by scoring each factor and then somehow calculating the total, as to do so would result in a process that is not a holistic assessment of the relevant matters (see Dickons & Dickons (2012) 50 Fam LR 244 at [21]). Such an “accounting” or “scoring” approach is necessarily flawed as it would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases) but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) and s 90SM(4)(c) of the Family Law Act 1975 (Cth) (“the Act”) to a quantitative value. As a result such an accounting approach has been consistently disapproved (see Bolger & Headon (2014) FLC 93-575 at [23]–[28]; Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48]; Benson and Drury (2020) FLC 93-998 …
[61] See Dickons & Dickons (2012) 50 Fam LR 244 at [25]
[62] Blandford & Esmore [2022] FedCFamC1A 67 at [14]; Benson & Drury (2020) FLC 93-998.
137 It remains open to the husband to advance his case in terms of contributions as he sees fit, as indeed it is for the wife. Ultimately, it will be the task of the Court to assess and weigh holistically the contributions made by the parties.[63] I am not satisfied the expert evidence in terms proposed by the husband is required, or will assist the Court in that endeavour. I decline the husband’s application.
[63] Jabour & Jabour (2019) FLC 93-898.
138 I am satisfied the circumstances warrant expert evidence, with respect to the quantum of a capitalised sum, to provide the wife with periodic maintenance. The requirements of justice and equity support obtaining evidence as proposed by each of the parties, in this respect. Lump sum spousal maintenance is sought by the wife, and may be ordered in preference to periodic maintenance.[64] The potential for such an order, in the present circumstances, is self-evident. The calculation of a capitalised sum is likely to be relevant and of assistance to the Court, and the parties. That calculation requires evidence from a suitably qualified expert.
[64] Family Law Act 1975 (Cth) s 80(1)(a).
139 I will make orders for the husband to meet the costs of the expert in the first instance, with the wife’s contribution to be determined at trial, or agreed, in light of his proposals.
140 In light of my determination, I intend to distribute these Reasons from chambers, to allow the parties an opportunity to confer and consider the terms of instruction to the expert. In my view, the expert should be requested to provide a report which includes the expert’s opinion as to (1) the quantum of a depleting capital sum, to provide the wife with periodic maintenance, over a period of three years, five years, ten years, and the wife’s life, (2) the wife’s life expectancy, with regard to the relevant life expectancy tables, (3) the quantum is to take into account the lump sum amount paid will be received by the wife in her personal name and income generated by that sum would be taxed in her name, and assume the Consumer Price Index applies on the basis of indexation relevant to a resident in City A, State B, (4) any such further matters as may be agreed by the parties. The expert should be instructed to calculate the capitalised sum, based upon such periodic rates as proposed by each party.
141 I am satisfied the proposed expert evidence will assist the resolution or determination of the case. I consider granting orders to obtain expert evidence of this nature is consistent with the purpose of the Rules, which will allow the case to be resolved in a just and timely manner, at a cost to the parties, and the Court, which is reasonable in the circumstances of the case.[65]
[65] Family Court Rules 2021 (WA) r 5.
142 In reaching that conclusion, I acknowledge the husband opposes an order for maintenance. The exercise of my discretion to permit expert evidence on the terms proposed, should not be viewed as any indication as to the likely outcome at trial. I consider the likely benefits of obtaining the evidence, justifies the costs, which is proportionate to the issues in the case, and their complexity.
143 I do not intend to appoint the Single Expert Witness, but will make orders as proposed by the husband. That will allow a mechanism for the parties to agree the expert’s identity, taking into account my determination as to the proposed terms of reference.
COSTS
144 The wife seeks the husband pay $300,000, or any other such sum as determined by the Court, to be applied towards her legal costs. The wife relies on the “costs power” contained in s 117 of the Act. Section 117(1) of the Act provides that subject to s 117(2), each party to the proceedings shall bear his or her own costs. Section 117(2) provides if the Court is of the opinion there are circumstances that justify doing so, the Court may, subject to sub‑ss (2A), (4), (4A), (5), and (6), and the applicable rules, make such order as to costs as it considers just. Once the relevant matters in s 117(2A) have been considered, then the overriding question is whether or not there are circumstances that justify making a costs order which is just in the circumstances.
What is the wife’s case?
145 The wife refers to the husband’s superior financial circumstances, including his property and income earning capacity, and his concession he has the capacity to pay whatever sums may be reasonably determined by the Court, by way of maintenance and alteration of property interests. She draws attention to the husband’s available savings, in addition to the cash held in various entities, which he controls.
146 The wife says the proceedings are complex, and refers to the husband’s conduct as a litigant, including his multiple amendments to his Initiating Application, and his two filed appeals (one of which was successful, and one of which he discontinued), amongst other matters. It is her case the amount she seeks, comfortably fits within the range of her likely final entitlements and $300,000 will readily be able to be “clawed‑back”, should that be required.
147 The wife has been represented throughout the proceedings.[66] The wife wishes to continue to instruct her solicitors, and retain senior counsel. She has provided the costs agreement she has entered into with her current solicitors, and senior counsel.[67]
[66] Initially by [Law Firm D], then [Law Firm B], and more recently, Law Firm C.
[67] The wife’s written submissions filed 10 June 2022, Annexure 1–2.
148 The wife has paid $387,380.20 in costs to date,[68] and owes her former solicitors $2,282.50. She has $16,000 in unbilled work in progress and her future anticipated costs are between $261,050 – $307,550, comprising of:
[68] Exhibit 2, costs notification from Law Firm C dated 27 June 2022.
(a)the interim hearing $1,500 - $2,500
(b)counsel’s fees for the interim hearing E $7,700
(c)anticipated further interim hearing $11,000 - $16,500
(d)up to the readiness hearing $44,000 - $55,000
(e)counsel’s fees up to readiness hearing E $7,700 - $15,400
(f)from readiness hearing to trial $33,000 - $44,000
(g)conduct and attendance at trial (estimated 7 days) $27,000 - $34,000
(h)counsel’s fees preparation and attendance at trial
E $107,800
(i)setting down and hearing fees $3,150
(j)implementation of final orders $2,200 - $5,500
149 The wife refers to the husband’s cost notification,[69] which confirms he has paid $545,672.47 to his solicitors, and $249,608.77 to counsel, senior counsel and other service providers, and he has outstanding fees of $37,798.10. The husband’s solicitors estimate the husband’s further costs, up to and including the trial, will be between $430,000 – $538,000, based on an estimated hearing time of five to seven days.
What is the husband’s case?
[69] Exhibit 1, costs notification from Law Firm A dated 24 June 2022.
150 The husband denies his conduct as a litigant has increased the wife’s costs. He submits he has attempted to resolve matters prior to the commencement of proceedings, and since. He has invited the wife to attend arbitration in an effort to achieve a quicker, cheaper determination, outside of court. He denies there is any complexity to the issues before the Court.
151 The husband submits the wife has been actively pursuing proceedings, observing she has filed multiple amended versions of her Form 1A, four interim application, 21 affidavits and nine subpoena, not all of which were accepted for filing. He observes the wife unsuccessfully sought to restrain him from continuing to instruct his solicitors, and retain his counsel, which delayed the substantive proceedings.
152 The husband says on the wife’s own evidence, her financial circumstances have improved between September 2020[70] and April 2022, which reflect an increase in both the wife’s income, and property. In light of the wife’s available property and resources, he submits it is inappropriate to make a costs order.
[70] While the husband deposes to the wife’s circumstances improving from September 2021, I infer this is an error and is meant to be September 2020, when the wife filed a Financial Statement.
153 The husband says the wife has the capacity to meet her own legal fees. He refers to the wife’s litigation funding loan, secured against property in her name. He questions whether the wife’s solicitors hold money on trust, and what amount, if any, she owes in legal fees.
Discussions and conclusions
154 I have previously addressed the parties’ respective financial circumstances. I have set out the evidence of each party with respect to their paid legal fees, their anticipated legal fees moving forward, and each party’s outstanding costs.
155 The husband has met his legal costs from his own resources. There is no question about his capacity to continue to meet his costs. The wife has met her legal costs from litigation funding, her credit card, savings, and other capital resources. She has not provided any detailed itemisation with respect to the payment of her costs. The wife’s cost notification states the wife will meet her future legal costs from any funds paid by the husband, or her credit card, savings, and other capital resources, “or … by litigation funding (if available)”.
156 The wife has entered into an agreement with her solicitors, which provides, amongst other matters:
(a)The wife will be billed at the end of each month, or at such other time as the firm considers appropriate, and payment is required within 14 days.
(b)The wife has agreed (if requested in writing) to charge her interests in property in her name and enable the firm to lodge a caveat or other reasonable securities against her property.
(c)The firm may refuse or cease to act, if the wife does not provide security for payment of her legal costs, and they may terminate the costs agreement if the wife does not pay the bills within 14 days of receipt, or fails to deposit funds into their trust account, as requested.
157 The wife’s senior counsel’s agreement provides he will render bills on a monthly basis, or at the conclusion of any hearing.
158 The husband is able to fund his own legal costs. The wife has been able to meet her costs to date, through litigation funding borrowings, savings and other capital resources. The wife currently has a debt owing to her previous solicitors, and unbilled work in progress with her current solicitors.
159 Subject to hearing I intend to list the proceedings for an adjourned Readiness Hearing. As a consequence, the parties will be required to prepare and file the material they seek to rely upon for trial.
160 I have already assessed the wife has an arguable case in relation to financial issues on a final basis. The case has a degree of complexity. Disclosure and expert evidence remain outstanding.
161 It is likely any funds paid to the wife by way of costs will be expended by her and accordingly, there will be no “asset” remaining from the funds, from which an adjustment could be made.
162 The husband has the capacity to pay the amount as sought, as conceded by him. There is no suggestion the husband would be significantly financially inconvenienced by such an order.
163 If the wife succeeds in her application, any interim cost order may be taken into account in determining the amount she may receive by way of an alteration of property interests. If the husband succeeds in his application, the wife will not receive any payment by way of alteration of property interests or by way of spousal maintenance. The ability to claw‑back an order is relevant, but not a decisive factor. In light of the wife’s property, I consider the funds could be recovered.
164 In relation to the parties’ conduct, these proceedings have been protracted due to a number of factors, including the energy and effort directed towards interlocutory disputes.
165 At this stage, neither party can say the other has been wholly unsuccessful in the proceedings. Each party has had mixed success, with respect to the interim applications ventilated to date.
166 There is no evidence in relation to what offers may have been exchanged,[71] for reasons which are self-evident.
[71] Apart from the husband’s previous open offer to pay the wife $1 million and for the wife to retain the property in her name, which has been withdrawn.
167 The overriding question is whether the circumstances justify making a costs order, which is just in the circumstances of this case.[72] Having considered the relevant matters, I am not satisfied the circumstances support an order for costs in favour of the wife. The wife has demonstrated a capacity to meet her legal costs. She has savings, real estate, and investments of substance. While the wife may have limited liquid funds, she has previously obtained litigation funding. She has provided financial support to her adult son. The wife’s solicitors have the option to secure their costs, and the wife has property available for that purpose. It is unclear whether any further litigation funding remains available, and if so, what the terms and conditions may be. There is limited evidence as to the available funds to the wife on her current credit cards.
[72] Atkins & Hunt and Ors (2018) 57 Fam LR 128 at [47].
168 In arriving at that conclusion, I have taken into account the husband’s superior financial position, the fact he can satisfy the order as sought, without prejudice to his ongoing capacity to meet his own legal costs, the claim for substantial relief sought by each party, the prejudice to each party in making an order or not making an order, and the estimate of costs provided, together with the orders I intend to make by way of partial property settlement in favour of the wife.
PROPOSED ORDERS
169 Subject to hearing from the parties, I propose to pronounce orders as follows:
1.The Respondent, [MS COSTA-OTHONOS], retain the sum of $298,000 paid by the Applicant, [MR OTHONOS], as and by way of partial property settlement.
2.Within 28 days, the Applicant is to file and serve either:
(a)an amended Form 13 Financial Statement, including Part N; or
(b)an affidavit in lieu thereof, with particularised Part N outlining his average weekly expenses.
3.Within 21 days, the Applicant provide to the Respondent, as and by way of disclosure, to the extent he has not already done so, copies of the following documents:
(a)the Applicant’s income tax returns and notices of assessment for the financial years ending 30 June 2017 to date;
(b)financial statements and tax returns for the financial years ending 30 June 2017 to date for [Business D] and each company and trust which is identified in the schedule accompanying the Applicant’s Form 13 Financial Statement filed 11 May 2022;
(c)member benefit statements for each superannuation fund in which the Applicant has or held an interest for the financial years ending 30 June 2017 to date;
(d)bank account statements for each account operated by the Applicant from 1 January 2017.
4.Within 21 days, the Respondent provide to the Applicant, as and by way of disclosure, to the extent she has not already done so, copies of the following documents:
(a)copies of each [Business A] rental income statement relating to each item of real property owned by the Respondent (whether solely in the name of the Respondent or jointly with any other person), together with copies of bank statements showing the disposition of that income;
(b)copies of documents relating to arrangements between the Respondent and her [Business A] [partner], “[redacted]” (and any other [partner]), in respect of payments made as a result of real property owned by the Respondent being listed with [Business A];
(c)documents relating to the [wellness facility] operated at [Property B], including but not limited to:
(i)the name and contact details of each person or entity to whom the property is rented or who has worked there;
(ii)the amount of rental income received; and
(iii)statements of each account to which that income has been paid;
(d)copies of documents relating to all income generated by the “[Business B]” or “[Business C]” businesses, including but not limited to balance sheets and profit and loss statements of each entity for the period of 1 July 2014 to the present;
(e)copies of all local council rates notices or invoices for:
(i)[Property A]; and
(ii)[Property B];
(f)copies of each licence and registration document issued for each motor vehicle in the Respondent’s sole name;
(g)copies of the accounts or invoice, and receipts, for the following services provided to the properties at [Property A] and [Property B]:
(i)gas;
(ii)water;
(iii)electricity;
(iv)telephone;
(v)internet;
(vi)gardening services;
(vii)pool cleaning and maintenance services;
(viii)other household maintenance services; and
(ix)household cleaners;
(h)copies of documents relating to the receipt and disposition of the $298,000 received by the Respondent pursuant to the orders of 22 March 2021, including but not limited to:
(i)all building contracts between the Respondent and [Company A];
(ii)details of any work done or being undertaken on [Property A]; and
(iv)estimated time frames for the completion of any such work;
(i)copies of the ANZ account statements for:
(i)account [redacted];
in the Respondent’s name for the period 1 January 2016 to the present;
(j)copies of the statements of the AMEX accounts in the name of the Respondent for:
(i)account ending in [redacted] for the period 1 January 2016 to 8 January 2019;
(ii)account ending in [redacted] for the periods:
(A)1 January 2016 to 8 October 2019:
(B)8 November 2019 to 7 January 2020; and
(C)10 February 2020 to 7 April 2020;
(iii)[Redacted] AMEX account ending in [redacted], for the period 1 January 2016 to 22 July 2019;
(iv)[Redacted] AMEX account ending in [redacted] for the periods:
(A)1 January 2016 to 22 October 2019; and
(B)23 January 2020 to 22 March 2020;
(k)copies of the Westpac statements of accounts in the name of the Respondent for:
(i)account [redacted] for the period 3 July 2018 to 3 January 2019;
(ii)[Redacted] account ending in [redacted] for the period 3 July 2018 to 3 January 2019;
(l)copies of all documents relating to monies owed to the Respondent by third parties;
(m)for the period of 1 January 2017 to present, copies of the Respondent’s:
(i)private health insurance claims history;
(ii)all medical and hospital records arising from the [redacted] incident;
(iii)Medicare claims history;
(iv)Pharmaceutical Benefits Scheme statement; and
(v)documents relating to her [surgery].
5.The time in which the Applicant has leave to ask questions of the Single Expert Witness, [Dr E], pursuant to rule 292 of the Family Court Rules 2021 (WA) be extended to 28 days from the date of these orders.
6.The Applicant has liberty to relist his interim application with respect to the appointment of [Dr J], for further hearing, following compliance with the preceding order, and specifically, after receipt of any response from [Dr E] to any questions posed.
7.The wife’s application for costs be and is hereby dismissed.
8.As soon as reasonably possible, the parties appoint a Single Expert Witness pursuant to rule 269(1) of the Family Court Rules 2021 (WA) (“the Single Expert Witness”) to prepare a report in accordance with paragraphs 10 hereof (“Report”).
9.For the purposes of selecting the Single Expert Witness:
(a)the Respondent provide to the Applicant’s solicitor in writing, the names and contact details of 3 suitably qualified Single Expert Witnesses, along with, in respect of each such person:
(i)the person’s curriculum vitae;
(ii)written confirmation that the person agrees to be so appointed and about the person’s availability to prepare a report as Single Expert Witness;
(iii)written information from the person as to his or her fees for acting as Single Expert Witness; and
(iv)a copy of all communication with the person in respect of this matter,
(together, “the required information”); and
(b)within 21 days of the Applicant’s solicitor receiving the required information, the Applicant select one of the named persons to be the Single Expert Witness and inform the Respondent’s solicitor in writing of that choice; and
(c)the parties thereafter promptly appoint the person to be Single Expert Witness in accordance with this order and rule 269(1) of the Family Court Rules 2021 (WA).
10.The parties instruct the Single Expert Witness to prepare and provide the Report to their solicitors as soon as reasonably possible, setting out the Single Expert Witness’s opinions as follows (subject to hearing from the parties):
11.Each party do all things necessary to facilitate the completion of the Report, including complying with each request of the Single Expert Witness and the provision of all such information and documents as he or she may request in a timely manner.
Readiness Hearing
12.The parties and their lawyers, if represented, attend an Adjourned Readiness Hearing on a date to be advised (subject to hearing from the parties).
13.At the Readiness Hearing, each party must satisfy the Court that the case is ready for trial and be prepared to provide the Court with the following information:
(a)the issues for determination at trial;
(b)a reasoned assessment of the likely length of a trial;
(c)the expected length of opening and closing addresses; and
(d)a list of witnesses and the time needed for examination and cross-examination of the witnesses.
14.No earlier than the allocation of the trial date but no later than 28 days before the first hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:
(a)the Applicant and the Respondent shall each pay 50% of the non-refundable setting down fee for a seven day trial; and
(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.
15.No later than close of Registry 2 business days before the second and each subsequent hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption:
(a)the Applicant and the Respondent shall each pay 50% of the hearing fee for that day of the trial; and
(b)for the purposes of this order, the fees payable by the Applicant be rounded up to the nearest dollar and the fees payable by the Respondent be rounded down to the nearest dollar.
16.By (hear from parties) prior to the date fixed for the Readiness Hearing, each party, file and serve a written undertaking as to disclosure in the form set out in Rule 211(4) of the Family Court Rules 2021 (WA) (Form NP15), attaching that party's list of disclosure documents.
17.The time in which the Respondent is to file and serve:
(a)Minute of Proposed Orders Sought.
(b)a single standalone affidavit setting out the whole of that party's evidence in chief for the purposes of the trial, including no more than 15 annexures;
(c)an affidavit from any supplementary witnesses, including no more than 5 annexures attached to each affidavit;
(d)a list containing the names of any proposed witness who has refused to provide an affidavit; and
(e)an up to date Form 13 Financial Statement.
be extended until (hear from the parties).
18.By no later than 14 days prior to the date of service of the above documents, the Applicant file and serve any affidavit in response, restricted to any new matters raised by the Respondent, including no more than 5 annexures.
19.By no later than 7 days prior to the date fixed for the Readiness Hearing each party shall file and serve a Trial Plan setting out:
(a)the expected length of that party’s opening and closing addresses; and
(b)the list of witnesses required to be called and the time needed for examination and cross‑examination of the witnesses.
20.The parties have permission to file subpoenas to produce documents in financial matters, provided any such subpoenas are filed prior to the Readiness Hearing.
21.All parties’ costs be reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
9 SEPTEMBER 2022
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