Pratley & Pratley (No 5)
[2023] FedCFamC1F 481
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pratley & Pratley (No 5) [2023] FedCFamC1F 481
File number(s): CAC 298 of 2019 Judgment of: GILL J Date of judgment: 13 June 2023 Catchwords: FAMILY LAW - Property proceedings - Adjournment - Vacation of trial dates - Late disclosure of in excess of 3,000 pages - Interests of justice Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r - 6.01 and 6.03 Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 13 June 2023 Place: Canberra Counsel for the Applicant: Mr Richardson, SC Solicitor for the Applicant: Hijazi Curran Cameron Lawyers Counsel for the Respondent: Ms Gillies, SC Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
CAC 298 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PRATLEY
Applicant
AND: MR PRATLEY
Respondent
order made by:
GILL J
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.Save in relation to an outstanding issue as to the appointment of a liquidator, the property trial is vacated.
2.Save in relation to the liquidator issue the proceedings are adjourned to a date to be fixed for further directions.
3.I direct that the costs of the property proceedings in relation to the adjournment today for both parties are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
At the commencement of the trial in this matter an adjournment application was made which was primarily directed to, but not solely confined to the property proceedings. This judgment deals with the adjournment in so far as it relates to the property proceedings.
The application for adjournment is founded in a complaint regarding a failure on the part of the husband to provide adequate and timely disclosure. That complaint sits against a background where the parties have pursued complaints regarding disclosure in various interlocutory disputes which themselves sit against a background where the property pool consists in part of, and has been derived in large part from, a business the parties operated and developed together during the relationship. Post the demise of their relationship a parallel business has been commenced by the husband and the wife has been excluded from the operation of the business that she was once intimately involved in. Orders have been made to provide for the sale of that original business which has been the focal point for much of the disputes regarding disclosure.
The complaint as to disclosure comes now in large part focused on two particular aspects relating to the service of 3,000 plus pages of documents Friday evening prior to the trial commencing the following Tuesday. The first is that it is those documents that disclose the movement of and transactions underpinning movement in the directors’ loans accounts that have only otherwise, it appears, been disclosed as bottom-line figures in financial statements. The second is that the documents disclose movement in the directors’ loans to the husband in the parallel business.
Against the wife’s complaints about these disclosure matters and her complaint as to the late disclosure of the 3,000 plus pages, noting that part of her complaint is that she now needs expert assistance to understand those documents, is a counter complaint made by the husband that if the directors’ loan accounts and the movements of them and the documents underpinning them was so important, why did the wife wait to specifically request the documents until a few weeks prior to the trial, particularly where the bottom lines had been previously disclosed for each financial year in the various statements. The husband further claimed that the duty of disclosure did not go so far as to demand the production of source documents absent a specific request. It is unclear that r 6.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the “Rules”) is so limited. In any event, here it appears that it is not merely an issue of source documents but an issue as to the underlying transactions said to justify the assertions now made as to the directors loans, they being a potentially significant issue in determining the nature of the property pool, the value of the original business, the debts currently held by each of the parties and perhaps even the taxation issues that each them will face on disposal of the original business by sale. These are important issues that engage the duty of disclosure as set out at both at r 6.01 and 6.03 of the Rules.
While it is true that a direct request may have averted this last moment deluge of documents, it should be noted that through the proceeding the wife has pursued fulsome access to the underlying accounting records of each of the businesses. While her particularity as to the documents here may be late, her pursuit of a fulsome disclosure has not been. The potential significance of the movement of the directors’ loans, particularly in the context of the entities being controlled by the husband, means that the interests of justice support the adjournment to permit the scrutiny of those records and related further enquiries.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 13 June 2023
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