Phelps and Phelps (No 2) - [2020] FamCA 900

FAMILY COURT OF AUSTRALIA

PHELPS & PHELPS (NO. 2)

[2020] FamCA 900

FAMILY LAW – PRACTICE AND PROCEDURE – where the proceedings are listed for trial in a month – where the single expert forensic accountant’s report has not yet been completed – where the wife may, after considering the single expert’s report, press her application for the appointment of an adversarial expert – where the wife seeks to provide the single expert with further information – where the husband opposes such information being provided to the single expert – application to provide the single expert with further information dismissed – Where the husband seeks to restrain the wife from causing or permitting accountants retained by her from attending any meeting with the single expert – application dismissed.

Phelps & Phelps [2020] FamCA 285

APPLICANT:

Ms Phelps

RESPONDENT:

Mr Phelps

FILE NUMBER:

BRC

4239

2017

DATE DELIVERED:

19 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Kirk QC

SOLICITOR FOR THE APPLICANT:

Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT:

Mr G Richardson SC

SOLICITOR FOR THE RESPONDENT:

Phillips Family Law

Orders

That the wife’s Application in a Case filed 7 October 2020 be dismissed.
That the husband’s application seeking to restrain the wife contained in his Response to an Application in a Case filed 13 October 2020 be dismissed.
That the costs of this Application in a Case be reserved to Trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phelps & Phelps has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4239 of 2017

Ms Phelps

Applicant

And

Mr Phelps

Respondent

REASONS FOR JUDGMENT

(settled from the oral reasons delivered)

In the midst of contested property proceedings a significant forensic issue arises as to the current market value of the four T Franchises in which the parties have interests in in Queensland. An issue also arises as to the value of the wife’s business. Forensic accountant, Mr G, prepared (as a single expert) in these proceedings a valuation report dated 12 July 2018, filed with his updated report of 9 April 2020. Those reports were filed in anticipation of an earlier trial listed to commence before me on 26 May 2020.
For reasons delivered on 29 April 2020 (see Phelps & Phelps [2020] FamCA 285) the trial was adjourned, and is now listed to commence on 16 November 2020. As it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phelps and Phelps (No 2)

Details

AGLC: Phelps and Phelps (No 2) [2020] FamCA 900
Case: [2020] FamCA 900
Decision Date: 19 October 2020

CaseChat Overview and Summary

In *Phelps and Phelps (No 2)*, Baumann J of the Family Court of Australia considered applications made by both the wife and the husband in proceedings listed for trial. The wife sought to provide further information to a single expert forensic accountant whose report was not yet complete, and indicated she might seek the appointment of an adversarial expert after reviewing that report. The husband opposed the wife providing further information to the single expert and sought to restrain her from allowing her retained accountants to attend any meeting with the single expert.

The court was required to determine whether to permit the wife to provide additional information to the single expert, and whether to grant the husband's application to prevent the wife's accountants from meeting with the single expert. These applications arose in the context of an impending trial and the wife's potential future applications concerning expert evidence.

Baumann J dismissed the wife's application to provide further information to the single expert, finding that the existing material was sufficient for the expert to complete their report. The court also dismissed the husband's application to restrain the wife's accountants from attending meetings with the single expert, implicitly allowing for appropriate communication between the parties and the expert. The costs of these applications were reserved to the trial judge.

Orders

Orders of the court

That the wife’s Application in a Case filed 7 October 2020 be dismissed.

That the husband’s application seeking to restrain the wife contained in his Response to an Application in a Case filed 13 October 2020 be dismissed.

That the costs of this Application in a Case be reserved to Trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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