Soldo and Soldo

[2019] FamCA 753

FAMILY COURT OF AUSTRALIA

SOLDO & SOLDO [2019] FamCA 753

FAMILY LAW – RULING – evidentiary admissibility questions – need for all material to be before the court to address s 79 issues – affidavit allowed.

Family Law Act 1975 (Cth), s 79
Family Law Rules 2004 (Cth), r 15.52(3)

APPLICANT: Ms Soldo

FIRST RESPONDENT: Mr Soldo

SECOND RESPONDENT: S Pty Ltd

THIRD RESPONDENT: I Pty Ltd (IPL)/ IPL Trust Pty Ltd Both In Its Own Capacity And In Its Capacity As The Trustee Of The IPL Family Trust

FOURTH RESPONDENT: C Pty Ltd/C Trust (Australia) Pty Ltd Both In Its Own Capacity And In Its Capacity As The Trustee Of The C Pty Ltd/C Trust Family Trust

FIFTH RESPONDENT: B Pty Ltd

SIXTH RESPONDENT: H Pty Ltd (HPL) Pty Ltd Both In Its Own Capacity And In Its Capacity As The Trustee Of Soldo Investment Trust No.1

FILE NUMBER: MLC 1835 of 2017

DATE DELIVERED: 14 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 14 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M Bartfeld of One of Her Majesty's Counsel with Mr T Puckey of counsel

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE FIRST RESPONDENT: Mr D Brown of One of Her Majesty's Counsel with Ms L Colla of counsel

SOLICITOR FOR THE FIRST

RESPONDENT:

Hicks Oakley Chessell Williams

COUNSEL FOR THE SECOND RESPONDENT: Mr D Brown of One of Her Majesty's Counsel with Ms L Colla of counsel

SOLICITOR FOR THE SECOND RESPONDENT: Hicks Oakley Chessell Williams

COUNSEL FOR THE THIRD RESPONDENT: Mr D Brown of One of Her Majesty's Counsel with Ms L Colla of counsel

SOLICITOR FOR THE THIRD RESPONDENT: Hicks Oakley Chessell Williams

COUNSEL FOR THE FOURTH RESPONDENT: Mr D Brown of One of Her Majesty's Counsel with Ms L Colla of counsel

SOLICITOR FOR THE FOURTH RESPONDENT: Hicks Oakley Chessell Williams

COUNSEL FOR THE FIFTH RESPONDENT: Mr D Brown of One of Her Majesty's Counsel with Ms L Colla of counsel

SOLICITOR FOR THE FIFTH RESPONDENT: Hicks Oakley Chessell Williams

COUNSEL FOR THE SIXTH RESPONDENT: Mr D Brown of One of Her Majesty's Counsel with Ms L Colla of counsel

SOLICITOR FOR THE SIXTH RESPONDENT: Hicks Oakley Chessell Williams

Orders

1. The affidavit of Mr Q affirmed on 8 October 2019 is admitted into evidence.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Soldo & Soldo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 1835  of 2017

Ms Soldo

Applicant

And

Mr Soldo

First Respondent

And

S Pty Ltd

Second Respondent

And

I Pty Ltd (IPL)/ IPL Trust Pty Ltd Both In Its Own Capacity And In Its Capacity As The Trustee Of The IPL Family Trust

Third Respondent

And

C Pty Ltd/C Trust Pty Ltd Both In Its Own Capacity And In Its Capacity As The Trustee Of The C Pty Ltd/C Trust Family Trust

Fourth Respondent

And

B Pty Ltd

Fifth Respondent

And

H Pty Ltd (HPL) Both In Its Own Capacity And In Its Capacity As The Trustee Of Soldo Investment Trust No.1

Sixth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This proceeding was commenced in February 2017.  It will shortly enjoy its third anniversary.  On the first day of the trial of this proceeding, shortly after openings Mr Brown of One of Her Majesty’s Counsel who appeared with Ms Colla of counsel for the husband indicated that their client wished to rely on a report of one Mr Q who made an affidavit on 8 October 2019, a matter of days before the start of the trial. 

2. Understandably, Mr Bartfeld of One of Her Majesty’s Counsel who appeared with Mr Puckey of counsel for the wife took issue with the admissibility of that affidavit, contending that it was both late served and that it prejudiced their client if it were permitted to be adduced.  They also relied on a collection of evidentiary grounds to contend that the affidavit should not be admitted into evidence.

3. For the reasons that follow I am of the view that the affidavit should in fact be admitted into evidence.  Let me briefly state my reasons.

4. On 1 October of this year the child support aspects of this case were introduced into this litigation, as I was told by counsel.  Counsel also told me that the application for child support had been sought electronically online yet no response has yet been given.  Mr Brown for the husband said that the assessment had not actually been issued.  While correct, that may be more a reflection of the speed of the administrative nature of the application than the fact that the application will not point positively be introduced into this case. 

5. Among the many issues that fall for determination in this case, the principle one is the division of property pursuant to s 79 of the Family Law Act which requires a decision to be made adjusting property interests in accordance with what is just and equitable in all the circumstances. 

6. On behalf of the wife, Mr Puckey, who argued the admissibility point contending that in reality this affidavit of Mr Q went to a proposition more directed to whether the wife needed a particular amount in order to meet her expenses, a matter of which (so Mr Puckey contended) was fundamentally erroneous for the purposes of s 79 of the Family Law Act.  A variety of technical defects of Mr Q’s affidavit were identified. 

7. A cursory examination of Mr Q’s affidavit indicates that he gave as his occupation accountant and a partner of a business advisory entity, he being a member of the Institute of Chartered Accountants and having practised in accountancy for more than thirty years, principally as a private business sector advisor. 

8. Mr Puckey said that the very short form curriculum vitae which Mr Q exhibited in “Appendix A” of his report did not descend to the requisite detail in order for me to be satisfied that Mr Q had the necessary expertise to give the evidence that he purported to give characterised by Mr Puckey in the nature of evidence of a financial analyst. 

9. That might be a line ball because Mr Q did give, albeit in short form, some recitation of his thirty years’ experience including advice in accountancy of a more general nature, superannuation, taxation, succession matters, and planning and operational matters.  He also gave evidence of his past expertise in corporate governance and mergers and acquisitions, neither of which appeared to be relevant to this case. 

10. Whether or not it is correct to characterise the entirety of Mr Q’s evidence as properly directed to a question of how much the wife needs to pay her bills is a moot point.  It seemed to be that in the report, even on a cursory examination, Mr Q indicated that the matters to which he deposed went beyond that.  They appeared to touch upon child support issues, albeit in a reasonably superficial manner, but they did go to that point. 

11. Staying with the point about Mr Q’s demonstrated expertise, it seemed to be common ground that rule 15.52(3) of the Family Law Rules did not require anything beyond what is recorded in paragraph (f).  Possibly at the margins, yet nevertheless stated, it seemed to me that Mr Q gave that evidence.  To the extent that Mr Q might not possess the necessary experience based on the matters there specified, namely specialised knowledge based on training, study or experience, that can be the subject of cross-examination by Mr Bartfeld and Mr Puckey. 

12. In discussion with Mr Brown, Mr Brown submitted that the evidence of Mr Q was significant and it should be allowed because it went to one of the matters in issue in this case.  It appeared to me that the evidence of Mr Q certainly was relevant.  Precisely how probative it ultimately becomes remains to be seen.  But it would orchestrate a prejudice that appeared to me to be unfair if Mr Q were to be shut out.

13. I accept Mr Puckey’s contentions that if he were to lead evidence that answered Mr Q’s evidence, Mr Puckey may need a break in the evidence to do so.  I have informed him that I am free to sit in January to resume this case if that becomes necessary.  But the extent to which Mr Q’s evidence survives will be readily apparent once he is cross-examined and whether it turns out the assumptions he makes and the projections on which he relies go no further than, as Mr Puckey says, evidence of how much the wife needs to pay her bills will be soon answered. 

14. It seems to me that it would help me to have the totality of the evidence before me in order to make proper orders under s 79 for the division of property in this case and to do so properly and justly I would be assisted by Mr Q’s evidence.

15. I propose to allow it. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 14 October 2019.

Associate: 

Date:  18 October 2019