Shipman & Shipman (No. 2)

[2021] FamCA 596

FAMILY COURT OF AUSTRALIA

Shipman & Shipman (No. 2) [2021] FamCA 596

File number(s):	SYC 8192 of 2018
Judgment of:	ALTOBELLI J
Date of judgment:	9 August 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – injunction against husband from accessing superannuation entitlements – trial directions made.
Number of paragraphs:	10
Date of last submission/s:	22 July 2021
Date of hearing:	22 July 2021
Place:	Sydney
Counsel for the Applicant:	Ms Beck
Solicitor for the Applicant:	Newnhams Solicitors
Counsel for the First Respondent:	Mr Campton SC
Solicitor for the First Respondent:	Barkus Doolan
Solicitor Advocate for the Second Respondent:	Mr Bundock
Solicitor for the Second Respondent:	Bundock / Palmer Lawyers
Solicitor Advocate for the Independent Children's Lawyer:	Ms Neilson
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

SYC 8192 of 2018

BETWEEN:

MR SHIPMAN

Applicant

AND:

MS SHIPMAN

First Respondent

MS DOHERTY

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	9 AUGUST 2021

IT IS ORDERED BY CONSENT THAT

1.The wife have leave to rely upon the Affidavit and report of Mr B of C Super Fund, filed 14 July 2021 for the purposes of the interlocutory matters before the Court on 22 July 2021.

2.The parties forthwith do all acts and things to instruct and cause Mr D of F Company to update the valuation of each of the husband's entitlements in the O Super Scheme and P Super Scheme (as contained in his report dated 14 February 2020) to the current date, and for that purpose:

1. the husband's lawyers forthwith sign and send the letter annexed to these orders and marked as "A” to F Company together with a copy of these orders;
2. the parties provide all documents required by F Company, if any, to enable them to carry out their mandate, to F Company forthwith upon request;
3. the parties each pay 50% of the costs of that valuation forthwith upon demand.

3.Pending further order of the Court to the contrary or agreement between the parties in writing following the making of these orders, the husband be restrained from:

1. doing any act or thing (or instructing, causing or allowing any representative or nominee to do any act or thing) having as its cause or effect, the accessing, withdrawal or draw down of his interest and/or entitlements (or any portion thereof) in the O Super Scheme;
2. doing any act or thing (or instructing, causing or allowing any representative or nominee to do any act or thing) having as its cause or effect, any increase in the regular payments being made to the husband from the P Super Scheme;
3. doing any act or thing (or instructing, causing or allowing any representative or nominee to do any act or thing) having as its cause or effect:

i.the payment, transfer or receipt of any monies and/or entitlements arising from the Put and Call Option Deed, the Deed of Loan Agreement and/or the Deed of Guarantee (and any associated arrangement to which the husband may be a party and/or arrangement in any way related to the Suburb G Property);

ii.the advance or loan of any monies to the husband or his representative or nominee (or payment of any monies, expenses or liabilities on the husband's behalf):

1.in satisfaction of any or all of the husband's entitlements pursuant to the Put and Call Option Deed, the Deed of Loan Agreement and/or the Deed of Guarantee (and any associated arrangement to which the husband may be a party and/or arrangement in any way related to the Suburb G Property); and/or

2.in any way encumbering or affecting any or all of the husband's entitlements pursuant to the Put and Call Option Deed, the Deed of Loan Agreement and/or the Deed of Guarantee (and any associated arrangement to which the husband may be a party and/or arrangement in any way related to the Suburb G Property;

without the wife's prior written consent or order of this Court first being obtained.

IT IS ORDERED THAT

4.The parties forthwith do all acts and things to instruct and cause Ms H of J Company to prepare a valuation of the property located at K Street Suburb G (Lot … in DP …) (‘Suburb G Property’) for the purposes of the final hearing at its highest and best use, and for that purpose:

1. The husband's lawyers forthwith sign and send the letter annexed to these orders and marked as "B" to J Company together with a copy of these Orders;
2. the parties provide all documents required by J Company to enable them to carry out their            mandate, to J Company, forthwith upon request;
3. the wife pays the costs of the valuation in the first instance with the trial judge to apportion the same at the final hearing of the matter.

5.Pending further order of the Court to the contrary or agreement between the parties in writing following the making of these orders, the husband be restrained from:

1. doing any act or thing (or instructing, causing or allowing any representative or nominee to do any act or thing) having as its cause or effect, the commuting of his interest and/or entitlements (or any portion thereof) in the O Super Scheme to a lump sum, part lump sum or pension, except for the purposes of meeting his legal expenses in these proceedings, meeting his legal expenses in Federal Circuit Court of Australia proceedings SYG1112/2021, and for his reasonable living expenses and the reasonable expenses of the children;

6.Save as otherwise agreed between the parties in writing, the parties forthwith do all acts and things to instruct and cause, in order of priority:

1. Mr L of N Accountants (or such other appropriate agreed expert should he not be willing or able to do so ) ("the SMSF Expert") to provide an opinion as to whether the information and documents obtainable by the SMSF Expert support a finding that 2,930 option/shares physically purchased by the parties in M Company in 2016 using funds from the Shipman Superannuation Fund were:

i.purchased in the name of the Shipman Superannuation Fund and constituted an asset of the fund; or

ii.purchased in the name of the Wife and constituted assets of the Wife/parties;

iii.or otherwise, and whether there are any monies owing to the Shipman Superannuation Fund and/or liabilities, taxes, penalties and the like of the fund and/or the parties (or either) as a consequence of the above and/or as a consequence of the subsequent sale of those shares by the wife post separation and/or conduct of the fund since 2015;

2. N Accountants (or such other appropriate agreed expert should they not be willing or able to do so) ("the SMSF Accounting Firm") be requested to prepare draft financial statements and tax returns for the Shipman Superannuation Fund for FYE16 to date (together with any additional documents necessary to make the fund a compliant fund) ("the SMSF Documents");
3. the SMSF Expert/SMSF Accounting Firm to thereafter nominate three registered auditors of the SMSF Expert's choosing to complete an audit of the fund and the SMSF Documents and the parties forthwith nominate one of those 3 as the nominated Auditor ("the SMSF Auditor");
4. the SMSF Auditor to thereafter submit such financials and returns on an audited basis to the Australian Tax Office,

and for that purpose:

5. The husband's lawyers, within seven days of the date of these orders, shall provide a response to the proposed joint letter annexed to these orders and marked "C" to the SMSF Expert/SMSF Accounting Firm;
6. The wife’s lawyers, within seven days of receipt of the response to the proposed joint letter, shall:

i.If the joint letter is agreed, forthwith sign and send the joint letter to SMSF Expert/SMSF Accounting Firm together with a copy of these orders; or

ii.If the joint letter in not agreed, forthwith seek to relist the matter before the Docket Registrar.

7. The parties provide all information and documents required by the SMSF Expert, SMSF Accounting Firm, and/or the SMSF Auditor, and do all acts and things to enable each of them to obtain what information/documents they require to carry out their mandate, and to enable each of them to carry out their mandate, forthwith upon request;
8. The costs of the above be met by the SMSF at first instance (equally from each parties' member interest) and thereafter by each of the parties in equal shares should there be a shortfall in a party’s respective member entitlement.

7.Within 21 days, the husband file and serve an Amended Initiating Application setting out with precision the orders to be sought by him at the final hearing.

8.Within 14 days thereafter, the wife file and serve an amended Response setting out with precision the orders to be sought by her at the final hearing.

9.By no later than 4pm on 16 October 2021 the parties each file and serve:

1. an amended Financial Statement in furtherance of Rules 13.05 and 13.06 of the Family Law Rules 2004;
2. the affidavits of evidence in chief of all witnesses including the husband (as to the Applicant husband) and the wife (as to the Respondent wife) relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

10.The Applicant husband and Respondent wife equally pay all setting down and trial fees by 4pm on 16 October 2021.

11.Should a party take objection to any evidence of another party:

1. any objection be taken no later than 14 days prior to the commencement of the final hearing by service of written notice on the lawyer for the other party, and the Independent Children's Lawyer.
2. the party so served notify the objecting party in writing no later than seven days prior to the commencement of the final hearing of which objections so taken are the subject of agreement and which require determination.

12.By no later than 4pm on 10 November 2021, the parties shall have conferred, settled and forwarded to my Associate a document in electronic form setting out:

1. Those parts of the evidence which shall not be read; and
2. Those parts of the evidence to which an objection is maintained and the reason for that objection.

13.By no later than 4pm on 1 November 2021, the husband and wife jointly provide electronically to …, a jointly prepared balance sheet, and in order to facilitate that occurring:

1. the husband's lawyers provide to the wife's lawyers, the draft balance sheet identifying all assets, liabilities, superannuation and resources comprising the property pool and the value the husband ascribes to same, by no later than 4pm on 18 October 2021; and
2. the wife's lawyers respond to same by no later than 4pm on 25 October 2021.

14.All parties file and serve electronically to … by 4pm on 1 November 2021 a Case Outline Document which includes, but is not limited to the following:

1. a list of Applications and Affidavits to be read and, if not the whole Affidavit, the relevant paragraphs relied upon;
2. a list of witnesses relied upon by the party in question;
3. a chronology;
4. a list of any relevant authorities relied upon by the party in question;
5. an indexed and paginated bundle of documents sought to be relied upon by that party, of any documents not annexed to their Affidavit evidence, proposed to be tendered at the hearing subject to objections; and
6.  a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.

15.By no later than 4pm on 12 November 2021, the parties are to have conferred, settled and forwarded to my Associate a joint ‘Trial Plan’ that allows for the trial to be completed within the allocated five days.

16.All parties have leave to issue any subpoenas by arrangement with the Registrar docketed with the management of the file.

17.The Independent Childrens Lawyer and the legal representatives for the husband and the wife have liberty to inspect (and obtain an electronic copy from the Court of) any subpoenaed documents produced in these proceedings (save in respect of which an objection has been successfully upheld or agreed to date [in respect of historical Subpoenas] or an objection is raised [in respect of future Subpoenas]), in compliance with any Practice Direction issued by the Court.

18.All parties have leave to approach the Registrar docketed with the management of this file to vary the obligations under these orders to ensure readiness for trial.

19.Leave be granted to the parties and the Independent Children’s Lawyer to file consent orders in Chambers in relation to parenting.

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 Shipman & Shipman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from the transcript)

ALTOBELLI J:

1. I adjudicate on competing contentions as to trial directions and a substantive issue in relation to the use by the husband of his superannuation entitlements.  The context is complex and acrimonious proceedings between the husband and the wife which potentially involve the wife’s mother and in respect of which another party may well have an interest.  There is a final hearing allocated for 5 November 2021 for five days relating to both parenting and property.  My view is that there is scope for a sensible and child-focused settlement of the parenting aspect of the case and I hope that the Independent Children’s Lawyer and the parties are working on that. 

2. The property aspect of the case is more complex.  There are valuation issues.  I expect that there will be substantial contention about the constitution of the asset pool, add-backs, assessment of contribution, and future needs.

3. I am grateful to counsel and the parties for agreeing to accept short form reasons in relation to the issues that I have to adjudicate on.

4. I have granted leave to the parties to rely on the Affidavit of Mr B filed 14 July 2021 and that of the husband filed 21 July 2021.  To not do so would only cause further applications by the husband.  In this case, a pragmatic approach was required. 

5. I have made an order to the effect that Ms H of J Company prepare a valuation of the Suburb G property as a single joint expert, having regard to the identified limitations of the existing valuation that was performed by Q Real Estate.  This will, in the first instance, be at the wife’s cost.  The valuation issues pertaining to the Suburb G property are complex and the attitude adopted by the Court is that more evidence is likely to assist, rather than detract. 

6. Orders in relation to updated valuations of the husband’s superannuation entitlements are made by consent.  These are appropriate. 

7. Orders are made the effect of which are to limit the husband’s use of and access to his superannuation apart from the purpose of meeting his legal expenses in this Court case and in the Federal Circuit Court of Australia proceedings relating to bankruptcy, as well as his reasonable living expenses and those of his children.  Howsoever this order is characterised (and this will be an issue for me to determine at the hearing), I am satisfied that I have the power and that there is adequate evidence to justify the making of the orders without any ultimate prejudice to the wife, having regard to the size of the asset pool.  I note from the evidence that the amount in question appears to be a fixed sum.  The remaining injunctions are, however, appropriate. 

8. I have declined to make the orders sought by the husband at paragraph 4.5 of his minute of order to use further funds received from the Put and Call Option Deed, the Deed of Loan Agreement, or the Deed of Guarantee in order to meet the judgment debt against him from the wife’s mother.  The wife legitimately raises concerns about the transparency of the arrangements between the husband and the party with whom he is dealing in relation to the Put and Call Option.  The final hearing is not that far off.  Judgment on the issue of the husband’s application against the wife’s mother has just been delivered. 

9. I made the order proposed by the husband in relation to Mr L of N Accountants. According to the husband, he is the accountant historically used in relation to the self-managed super fund.  From the Court’s perspective, it makes sense to engage him.  Order 5 proposed by the husband will thus be made.   

10. A number of trial directions will be made.  I see no need to make notations as proposed by the wife.  The orders proposed will be published early this afternoon and I would be grateful if the parties’ lawyers were able to have a close look at them. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.

Associate:

Dated:       11 August 2021