Quill & Quill (No. 2) - [2021] FamCA 627

FAMILY COURT OF AUSTRALIA
Quill & Quill (No. 2) [2021] FamCA 627

File number(s): MLC 6573 of 2010

Judgment of: MCGUIRE J

Date of judgment: 31 August 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Senior Registrar’s decision – Hearing de novo – Interim Application by husband to adduce single expert evidence from a forensic accountant – Application dismissed.

Legislation: Family Law Act 1975 (Cth)

Number of paragraphs: 33

Date of hearing: 26 August 2021

Place: Hobart

Counsel for the Applicant: Mr Frankel

Solicitor for the Applicant: Consult Solicitors

Counsel for the Respondent: Mr Dixon Q.C.

Solicitor for the Respondent: Coote Family Lawyers
ORDERS

MLC 6573 of 2010

BETWEEN:
MR QUILL

Applicant

AND:
MS QUILL

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

31 AUGUST 2021

THE COURT ORDERS THAT:
1.The husband's Application in the Case dated 23 August to 2021 seeking a review of the orders of Senior Registrar Hoult of 18 August 2021 be dismissed.
2.Pursuant to rule 19.05 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Quill & Quill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
Application

Before me is an application in the case filed by the husband, Mr Quill, seeking to review the decision of Senior Registrar Hoult of 18 August 2021. Pursuant to the Rules[1] such application proceeds by way of hearing de novo.
[1] Family Law Rules 2004 (Cth).
After discussions with counsel, the only issue remaining from my determination is the husband's application for liberty to adduce evidence from a forensic accountant, Mr KK, by way of expert report in respect of the husband’s substantive application, currently listed for trial on 27 September 2021, and seeking orders under s 79A(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’) to set aside the final property orders made by consent between the parties on 21 July 2010. Both the substantive and interlocutory applications are opposed by the wife, Ms Quill.
RELEVANT BACKGROUND
The husband is 77 years of age and the wife is 62 years.
They married in 1979 and separated in 2000. A divorce was granted in 2021.
The parties entered into final consent orders as to property settlement on 21 July 2010. Both parties were represented at that time. The limited evidence before the Court suggests that the parties were then of some considerable wealth. They owned a number of the parcels of real property. They operated…

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 Quill & Quill (No. 2)

Details

AGLC: Quill & Quill (No. 2) [2021] FamCA 627
Case: [2021] FamCA 627
Decision Date: 31 August 2021

CaseChat Overview and Summary

In the matter of *Quill & Quill (No. 2)*, the Honourable Justice McGuire considered an application by the husband, Mr Quill, seeking a review of a Senior Registrar's decision. The dispute arose from the husband's substantive application under s 79A(1)(a) of the *Family Law Act 1975* (Cth) to set aside final property orders made by consent in 2010. The wife, Ms Quill, opposed both the substantive application and the husband's interlocutory application.

The primary legal issue before the court was whether the husband should be granted leave to adduce evidence from a forensic accountant, Mr KK, by way of an expert report. This evidence was sought in relation to the husband's substantive application to set aside the 2010 consent orders, which involved significant assets including real property and a farming partnership. The husband's application for leave to rely on this expert evidence had previously been dismissed by another judge in respect of Mr KK, but the current application sought a review of that dismissal.

Justice McGuire reasoned that the husband's substantive application relied on allegations of a miscarriage of justice and a breach of trust, specifically that the wife held certain assets on trust for the husband to avoid a creditor. The court noted that the husband himself could provide evidence regarding the nature and recoverability of a debt owed to him by a Mr NN, which was a key asset in question. The court found that matters concerning the prospects of debt recovery and potential capital gains tax liabilities were issues of fact for the court to determine, assisted by legal authorities, rather than subjects for expert forensic accounting opinion. Consequently, the court concluded that there was neither necessity nor relevance for the proposed expert evidence from Mr KK in the context of the s 79A application.

Accordingly, the husband's application seeking a review of the Senior Registrar's orders was dismissed. The substantive application remained listed for trial on 27 September 2021. The court also made an order pursuant to rule 19.05 of the *Family Law Rules 2004* (Cth) that it was reasonable to engage counsel to attend the hearing.

Orders

Orders of the court

MLC 6573 of 2010

BETWEEN:

MR QUILL

Applicant

AND:

MS QUILL

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

31 AUGUST 2021

THE COURT ORDERS THAT:

1. The husband's Application in the Case dated 23 August to 2021 seeking a review of the orders of Senior Registrar Hoult of 18 August 2021 be dismissed.

2. Pursuant to rule 19.05 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

After discussions with counsel, the only issue remaining from my determination is the husband's application for liberty to adduce evidence from a forensic accountant, Mr KK, by way of expert report in respect of the husband’s substantive application, currently listed for trial on 27 September 2021, and seeking orders under s 79A(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’) to set aside the final property orders made by consent between the parties on 21 July 2010. Both the substantive and interlocutory applications are opposed by the wife, Ms Quill.RELEVANT BACKGROUND The husband is 77 years of age and the wife is 62 years. They married in 1979 and separated in 2000. A divorce was granted in 2021. The parties entered into final consent orders as to property settlement on 21 July 2010. Both parties were represented at that time. The limited evidence before the Court suggests that the parties were then of some considerable wealth. They owned a number of the parcels of real property. They operated a farming partnership, ‘DD Company'. The consent orders provided, as is available, for the parties to continue to operate to the partnership despite the intent of s 81 of the Act. It also seems agreed that the husband remained in occupation of a property which fell to the wife under the consent orders and that he paid rent at least until 2020. On 29 January 2021 the wife filed an application in this Court effectively seeking enforcement of a number of the orders from 2010. On 1 February 2021 the husband filed an application seeking orders under s 79A of the Act. The applications became came before McMillan J on 16 February 2021 whereupon the matter was bifurcated to allow preliminary hearing of the husband s 79A application which was then listed for trial for three days duration commencing 1 June 2021. Broadly speaking, in respect of his substantive application, the husband relies on s 79A(1)(a) that there has been a miscarriage of justice and s 79A(1A) that the parties conduct gave rise to an explicit or implied consent that the parties vary the orders and specifically that the wife was to hold certain assets coming to her under the consent orders on trust for the husband and apparently so as to avoid scrutiny by a potentially litigious creditor of the husband. Trial material appears to have been filed in anticipation of the trial to commence 1 June 2021. The husband filed his trial affidavit on 6 April 2021. Nevertheless, on 22 April 2021 the husband filed an application in a case seeking to rely on the single expert valuations of:(i)Mr B – real estate valuer; (ii)Mr GG – building experts; and(iii)Mr KK – forensic accountant. Queens Counsel for the wife now before me submits, and I accept, that at that stage the husband had obtained substantive reports from Mr B, but not from either Mr GG or Mr KK. The husband's interlocutory application came before Hartnett J for hearing on 10 May 2021. Her Honour gave judgement on 14 July 2021 ordering inter alia that the husband have liberty to rely on expert evidence of the Mr B, but dismissing the application in respect of the each of Mr GG and Mr KK.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, counsel for the husband submits, and it is conceded that there are no ‘enterprises’ of the parties other than the partnership. The husband retained an ‘asset’ or chose-in-action by reason of the consent orders being the right to recover a debt from a Mr NN. The husband himself can give evidence as to the nature of the debt and its recoverability. Matters such as the prospects of the recovery and the like are not properly the subject of such expert opinion and as anticipated from Mr KK.CONCLUSION In conclusion, therefore, I am not persuaded that there is either necessity or relevance within the context of this s 79A application for expert forensic accounting evidence from Mr KK. The assets essentially comprise of real property now the subject of expert historical valuations by Mr B and issues as to the inclusion of a capital gains tax liability and/or the recoverability of the Mr NN debt are matters of fact for the Court assisted by relevant to authorities. Given this determination, I need comment no further on the delays in this matter and the submissions by Queens Counsel for the wife as to any motivation of this application. Again, it was not argued that I should not hear the application and I have not done so. The application will be dismissed. The matter will remain listed for trial to commence 27 September 2021.

Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 6573 of 2010
Judgment of:	MCGUIRE J
Date of judgment:	31 August 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of a Senior Registrar’s decision – Hearing de novo – Interim Application by husband to adduce single expert evidence from a forensic accountant – Application dismissed.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	33
Date of hearing:	26 August 2021
Place:	Hobart
Counsel for the Applicant:	Mr Frankel
Solicitor for the Applicant:	Consult Solicitors
Counsel for the Respondent:	Mr Dixon Q.C.
Solicitor for the Respondent:	Coote Family Lawyers

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	31 AUGUST 2021