Sederis and Opet

[2008] FamCA 982

FAMILY COURT OF AUSTRALIA

SEDERIS & OPET [2008] FamCA 982

FAMILY LAW – PROPETTY - Interim - appropriate in this case not to appoint a single expert – use of applicant wife’s forensic accountant to conduct inquiry of respondent husband’s financial situation

APPLICANT: Ms Sederis

RESPONDENT: Mr Opet

FILE NUMBER: SYC 1277 of 2007

DATE DELIVERED: 27 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 27 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page

SOLICITOR FOR THE APPLICANT: Corporate & Property Lawyers

COUNSEL FOR THE RESPONDENT: Mr Campton

SOLICITOR FOR THE RESPONDENT: Meyer Pigdon Family Lawyers

Orders

1. Within 14 days the solicitors for the husband file and serve a document which sets out any corrections the husband wants to make in relation to items in the joint balance sheet and items in Exhibit “A”.

2. Each party be at liberty to engage and provide evidence from a forensic accounting expert as to the value of the companies S Pty Ltd, M Pty Ltd, T Centre Pty Ltd and X Pty Ltd and T (Fiji) Ltd (being the interest of the husband in that company) together with any assets of the husband associated with such companies.

3. For the purposes of the preparation of a report by the accounting expert the wife be at liberty to issue subpoenas to the following:-

   3.1.W & Associates for all working papers, memoranda, correspondence and all documents relating or used in preparation of accounts for the companies named herein.

   3.2.K & Associates Pty Ltd in South Australia for all instructions, correspondence, applications for finance, submissions for finance and working papers relating to the husband and the companies in paragraph 1 hereof.

   3.3.Watts McCray Lawyers for all documents held by them, being documents contained in the list prepared by that firm of documents held for the wife subject to any submission that firm may wish to make in relation to any rights that they assert they have in those documents to the Registrar on the return of that subpoena. 

4. Each party provide to the other all documents required by that party for the purposes of the preparation of a report by the expert employed by the party and in the event of a failure or refusal to comply with such request the party requesting production shall be at liberty to apply on short notice for such production. 

5. The husband comply with the notices requiring particular disclosure delivered on or about 5 October 2008 and 14 October 2008, on or before 5 November 2008. 

6. Leave be granted to the wife to issue any subpoena to any bank for any original cheque or deposit slip or bank statements she wishes.

IT IS NOTED THAT

1. The wife has not required the physical production of equipment maintenance and use records which are currently located at P; that those records are available for inspection by the wife on her giving reasonable notice and making an appointment and that the husband will provide those inspecting those documents on behalf of the wife with photocopies of any documents that they request

2. Whilst orders as sought in orders 1 and 2 of Exhibit C are declined today, that does not preclude the husband at some time later remaking that application. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 1277 of 2007

MS SEDERIS

Applicant

And

MR OPET

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There is a disagreement between the parties as to whether or not the wife should provide to the husband full details of the information that she has that leads her to believe that there may be some problem with the integrity of the financial accounts and financial statements that are Exhibit A.

2. The parties have reached an agreement, with which I concur, that this is a case where it is appropriate not to appoint a single expert but for each party to have their own expert and for the matter to proceed in a manner that was common in this Court, prior to the introduction of the 2004 Rules.

3. The wife wants her forensic accountant to carry out an inquiry, not only in respect of the value of the two major companies, but also as to whether or not the information in the financial accounts fully discloses the circumstances of those two companies.

4. I think, on balance, the most appropriate thing to do is to allow that forensic accountant to look at the husband's entities, without necessarily alerting the husband to lines of inquiries that the forensic accountant may be pursuing on the instructions of the wife.  The wife at this point, does not seek any contribution from the husband in respect of the payment of fees for her forensic accountant. 

5. It may be that at some point, the husband will re-agitate for orders similar to the ones that the husband sought in Order 1 and Order 2 of Exhibit C.  I will not make those orders today but that does not mean that I will not make them or something like them in the future. 

6. It might be, of course, that once the wife's forensic accountant has looked under all the rocks that he or she wants to look under in the husband's operations, that the assertions that have been made by way of opening from senior counsel for the wife today, will no longer be pursued. 

7. So, I intend to make orders in the form of Orders 1, 2, 3, and 4 in the wife's document, which I will mark Exhibit B.

8. Order 2, as I understand it, is not controversial, except that in relation to the subpoena to Watts McCray, I will add a note that it is subject to any submission that firm may wish to make in relation to any rights that they assert they have in those documents to the Registrar on the return of that subpoena.

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

Associate: 

Date:  18.11.2008