Payne & Payne

[2009] FamCA 1005

FAMILY COURT OF AUSTRALIA

PAYNE & PAYNE [2009] FamCA 1005

FAMILY LAW – PRACTICE AND PROCEDURE – Expert valuations

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Payne

RESPONDENT: Mr Payne

FILE NUMBER: MLC 13042 of 2007

DATE DELIVERED: 20 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 20 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: ROBERT WOOD & ASSOCIATES

COUNSEL FOR THE RESPONDENT: Mr Fookes

SOLICITOR FOR THE RESPONDENT: AUGHTERSONS

Orders
IT IS ORDERED THAT

1. The parties forthwith do all things and sign all documents necessary to instruct M Accountants to update the single expert reports dated 31 March 2008 and 4 March 2009.

2. Notwithstanding paragraph 1 hereof each of the parties be and is hereby at liberty to provide independent material to M Accountants for consideration in that report and contemporaneously provide to the other party copy of any such material.

3. To better enable compliance with paragraph 1 hereof the parties:

   a.   provide to M Accountants copies of all documents discoverable in these proceedings other than those subject to an objection to production by reason of a claim of privilege or other like matter; and

   b.   provide to M Accountants either an agreed position or copies of reports with regard to revaluation of any asset which will be required for completion of such report.

4. The husband’s application for review of the order of Registrar Kaur made on 1 May 2009 be allowed and the said order be set aside.

5. Any report which was the subject of the said order be forthwith removed from the Court file and returned to the party filing same.

6. All applications be adjourned to a Directions Hearing before Registrar Kaur on a date to be fixed by the Court and advised to the parties.

7. All questions of costs be reserved.

8. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13042 of 2007

MS PAYNE

Applicant

And

MR PAYNE

Respondent

REASONS FOR JUDGMENT

1. The substantive proceedings are brought puruant to section 79 of the Family Law Act 1975 seeking alteration of property interests as a result of the breakdown of the parties’ marriage.  They were issued some time ago and the parties are still embroiled in interlocutory applications.  It would appear at this stage that the two main areas of dispute are first, the question of whether the husband has made full and frank disclosure by way of discovery of all relevant documents in the proceedings, and secondly, as to whether a single expert previously appointed should continue in that capacity or whether there should be a new expert appointed. 

2. Previous orders have been made requiring discovery of all relevant documents.  It is alleged on behalf of the wife that the husband is in breach of those orders but no application is presently before the Court in any proper form to enable the Court to consider the merits or otherwise of that allegation.  A firm of accountants, M Accountants, was appointed as the single expert to prepare the usual report with regard to the parties’ finances.  That report was prepared some time ago and provided to the parties. 

3. The wife has expressed displeasure with the report in that she asserts that M Accountants did not take into account all of the relevant matters. In furtherance of her objection the wife has engaged an expert of her own to advise on various issues. That expert has provided the wife with what appear to be four reports which are at least in part critical of the report of M Accountants. At least one of those reports, that is by the wife’s expert, has been filed in Court. It is common ground that no leave was sought pursuant to the Family Law Rules for the filing of that report prior to its being filed. It would appear that it was relied upon, together with the single expert report, at a conciliation conference conducted by a Registrar. It is alleged on behalf of the wife that no objection was taken to reliance on it. It would appear to be common ground that the wife’s expert’s report was not objected to for some months following its filing.

4. At some subsequent time an application was made for the requisite leave and an order was made by a Registrar giving that leave.  The husband has filed an application for review of that decision and that is the application presently before me.  From the wife’s point of view the fundamental issue is that she does not have faith in the M Accountants report.  Her objections to it have led her to the view that it does not sufficiently canvass the matters which are going to be required by the Trial Judge to enable a determination of the competing substantive applications for alteration of property interests. 

5. For his part the husband through Counsel asserts that that is not a reason to change single experts and is not in itself a reason for the giving of leave for the filing of the wife’s expert’s report which is the subject of this application for review.  In my view, as a matter of policy the fact that a party objects to the contents of a single expert’s report, and perhaps even to the process followed by that single expert, is not of itself a reason to dispense with the single expert.  Parties cannot pick and choose on these matters and the Court must retain control of the single experts appointed by it.  To the extent that the wife might object to the single expert’s report, that would be a matter for evidence and in particular cross-examination at the trial. 

6. I am taking what I regard as being a pragmatic view.  It is clear that, given the age of the single expert’s report and the global financial crisis which has brought with it various changes in value to property and presumably, at least arguably, to property which is the subject of the present proceedings, it is necessary for an update of that report to take place.  Prior to that it will be necessary for the parties to either agree on values of subject property, I think that involves mainly two pieces of realty, or alternatively to arrange for valuers to undertake revaluations. 

7. It is necessary for the parties each to provide to the single expert all relevant documentation which is discoverable in the proceedings and not subject to an objection to production by virtue of privilege or any other cause and in those circumstances, particularly given that there is no specific application for further and better discovery, that is as far as can be gone.  I propose ordering that M Accountants update their report.  There will be a joint referral by the parties on that basis and the parties will be at liberty each to provide to M Accountants any further matters which they seek that M Accountants should rely on in their consideration of the update. 

8. On the wife’s part if she chooses that would include, as conceded on behalf of the husband, the further reports by the valuers appointed on her behalf. Upon receipt of that update it is then open to the parties to avail themselves of the provisions of the Family Law Rules with regard, for example, to the appointment of adversarial witnesses, while at the same time they may consider that such witnesses should be what are referred to as shadow witnesses rather than formal witnesses in the proceeding. The result of this therefore is to allow the review and set aside the Registrar’s order and order in accordance with my reasons for judgment.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  27 October 2009