Simred and Simred

[2008] FamCA 130

FAMILY COURT OF AUSTRALIA

SIMRED & SIMRED [2008] FamCA 130

FAMILY LAW – PROPERTY – Interim case management hearing concerning updated valuation of those made in 2006 of wife’s interest in aged care facility and husband’s interest in super fund – Orders made noting husband, if dissatisfied, could make application for appointment of an adversarial expert – Refusal, in the circumstances, to conduct a Judicial Settlement Conference at this stage of the proceedings.

Family Law Act 1975 (Cth) (as amended)

APPLICANT: Mrs Simred

RESPONDENT: Mr Simred

FILE NUMBER: MLF 1315 of 2006

DATE DELIVERED: 4 March 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 4 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Crofts

SOLICITOR FOR THE APPLICANT: Ferdinand Zito & Associates

COUNSEL FOR THE RESPONDENT: Mr Ham

SOLICITOR FOR THE RESPONDENT: Westminster Lawyers

Orders

1. That the husband and the wife forthwith jointly instruct:

   (a)Mr F to provide an updated valuation to the valuation of July 2006 prepared by him of W Business and the parties’ interest therein held via P Pty Ltd as trustee for the Simred Family Trust;

   (b)Ms K of M Financial Advice to provide an updated valuation of the valuation of July 2006 prepared by her of the husband’s interest in the Super Fund on the basis of both the husband continuing to take a pension and on the basis the husband takes a lump sum benefit at 64 years.

2. That the updated valuations required by para 1 shall be provided to the parties by not later than 25 March 2008.

3. That the parties shall each provide to the valuers appointed by para 1 such information as the valuers may reasonably require and the parties shall initially each pay 50% of the costs of such valuations with a final determination of the responsibility for such costs to be a matter for the trial Judge.

4. That all extant applications and further management of this matter be referred to the Honourable Justice Cronin.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1315  of 2006

Mrs Simred

Applicant

And

Mr Simred

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me this day pursuant to case management orders made by me on 21 December 2007.  Those orders are self-explanatory.  However, it is claimed by each of the parties that full compliance has not been undertaken by the other. 

2. I have the advantage of Mr Crofts continuing to appear for the wife and Mr Ham appears this day for the husband.  The matter came on before me for mention only and I would have assumed that it could have been heard and completed within the 30 minutes available of my time on mention matters.  It is now quarter past 11.  I had a short adjournment in the expectation that the parties would be able to draft up a Minute of Consent Orders providing for an updated valuation of the wife's interest in the business, W Business, held by P Pty Ltd as Trustee for the Simred Family Trust.  I would also have expected there to be an updated valuation by Ms N of M Financial Advice of the husband's interest in the Super Fund on the basis that the husband continue to take a pension, alternatively, that he elected to receive a lump sum at the age of 64.

3. It was my further expectation, following discussion, that there would be provision for the updated valuations to be undertaken and received not later than 25 March 2008, albeit there was resistance to that date by the husband.  I suggested that it was beyond comprehension that an efficient professional and competent valuer could not present an updated valuation within a time frame of some three weeks. 

4. There was a Notation to my order of 21 December 2007 that this day was fixed for the purpose of ensuring readiness and preparation for trial as a matter of priority, alternatively, for a Judicial Settlement Conference to be conducted by me.

5. Early in the debate this morning, Mr Crofts submitted that the husband had failed to comply with paragraph 3 of the orders of 21 December 2007.  Mr Ham informed me of his instructions, namely that the husband had complied with the order.  I put that matter to bed by requiring the husband to give evidence before me on the issue of his alleged non compliance.  I am satisfied from his evidence that, so far as he is concerned, he has provided to his solicitor all the relevant material and has been informed by him (Mr Collins) that all relevant material has been passed on to the wife's solicitors.

6. That left the issue of the updated valuations.  Mr F provided a valuation in 2006 of the wife's interest in the W Business.  In the same year, Ms N provided a valuation of the husband's interest in the Super Fund.  The proceedings were instituted on 19 April 2006.  Since then, the matter has not progressed because the husband has taken issue with the valuation provided by both Mr F and also that provided by Ms N. 

7. I expressed a preliminary view that the objections to the valuation process were somewhat risible and that with a modicum of good commonsense, a solution could have been achieved to the problem in which each of the parties have found themselves.  In any event, a transcript of the debate this day will demonstrate the difficulties I had in having the parties come to any agreement in sensibly constructing a basic pool of assets and liabilities for the purpose of a Judicial Settlement Conference.

8. At one stage, when I had pointed out the advantages to the parties of a Judicial Settlement Conference, the husband expressed to me from the floor of the court that he believed it would “not be possible” to agree on a pool of assets.  On that basis, I make it clear that I do not propose to hold a Judicial Settlement Conference.

9. Such a conference can only be undertaken with the parties agreeing upon a “basic pool of assets” and approaching it on the basis that they genuinely wished to negotiate an adjustment.  That is a position demanding of good faith.  I rather suspect that the parties thus far, and who is more to blame than the other will be a matter yet to be determined, have a fundamental inability to come to an agreement about such matters and that the continuing demand of the husband for certain information is making that course of adjustment a difficult one.  Whether I am right or wrong on that will be a matter ultimately for determination by a trial judge. 

10. It is somewhat fanciful to me that the process of the hearing in this matter is pursuant to Division 12A of the Family Law Act 1975 (as amended) because of the bitter dispute between the parties on somewhat puerile issues. In any event, following the matter being stood down this morning and with my expectation that there would be an agreed Minute of Orders for the preparation of updated valuations, I have been provided with such a minute which commences with the introductory words (paragraph 1) that, "The husband and wife forthwith jointly instruct".  It then goes on to provide in paragraph (a) for Mr F to provide an updated valuation of his earlier valuation in July 2006 of W Business and that Ms N provide an updated valuation to her July 2006 valuation of the husband's interest in the Super Fund.

11. However, Mr Ham, on behalf of the husband, now opposes the fact of the husband being a party to “jointly instruct” Mr F for the provision of an updated valuation.  I was informed during the course of submissions this morning by Mr Crofts that the husband made a complaint to the Taxation Office concerning unaccounted for cash in the wife's business and which would affect any valuation provided by Mr F.  It was put by Mr Ham however that the husband did not make any such complaint to the Taxation Office.  In any event, whatever the position, I was informed by Mr Crofts that the Taxation Office had audited the business interests of the wife and there was no penalty.  It was suggested by Mr Ham that it was a “simple blind audit” which would be insufficient, I suspect (and I draw this by way of imputation from his submissions) to reveal the unaccounted cash receipts.  I then made the clear point that if that was the position, then there is an obligation upon judges of this court to have the matter remitted back to the appropriate authority for consideration elsewhere.  It that were so, it may transpire that this case not come on for trial for a long time.

12. In any event, what I propose to do is to make the orders as have been prepared which I will mark Exhibit “A”.  I do so as orders of the court and not by consent.  As Mr Crofts pointed out, insofar as the updated valuation is concerned, if the husband does not like it, he can make application for an adversarial expert to be appointed.  That application could be made to Cronin J, who will have the control of this matter from this day on.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  14 March 2008