Soldo and Soldo

[2017] FamCA 181

FAMILY COURT OF AUSTRALIA

SOLDO & SOLDO [2017] FamCA 181

FAMILY LAW – PROPERTY –  Injunctions-where the wife has sought the husband be restrained from dealing with sale proceeds of property and altering the corporate structure of companies – where the husband has removed the wife as a director of companies – where the wife has sought the husband inform her before dealing with sale proceeds – where the Court is not satisfied an injunction is necessary – where there is no risk of disposal of property to defeat judgment – no orders made for sole use of former matrimonial home or spousal maintenance where wife in occupation of property to the exclusion of the husband and she and the children financially supported by the husband – future conduct of proceedings – where procedural orders sought by wife found are premature.

Family Law Rules 2004 (Cth)

Davis & Davis (1976) FLC 90-062

Mullen & De Bry (2006) FLC 93-293
Waugh & Waugh (2000) FLC 93-052

APPLICANT: Ms Soldo

RESPONDENT: Mr Soldo

FILE NUMBER: MLC 1835 of 2017

DATE DELIVERED: 24 March 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 7 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson QC

SOLICITOR FOR THE APPLICANT: Landers & Rogers

COUNSEL FOR THE RESPONDENT: Mr Sweeney

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

ORDERS

IT IS ORDERED BY CONSENT THAT

1. The husband forthwith pay or cause to be paid to the wife the sum of $500,000, such sum to be paid by way of partial property settlement. 

IT IS ORDERED THAT

1. On or before 4.00 pm on 1 May 2017 the parties file and serve any written submissions in support of any application for costs arising out of or incidental to the wife’s Application for interim orders filed 27 February 2017.

2. On or before 4.00 pm on 15 May 2017 the parties file and serve any reply to any written submissions in support of any application for costs arising out of or incidental to the wife’s Application for interim orders filed 27 February 2017.

3. The question of costs be determined based upon the parties’ written submissions subject to leave being sought to make oral submissions.

4. The requirement for the parties to attend a conciliation conference be dispensed with.

5. All extant applications for final orders together with paragraphs 4, 5 and 6 of the wife’s Application for interim orders filed 27 February 2017 be adjourned for hearing in the Registrar’s Directions List on a date to be fixed after 1 July 2017.

6. All extant applications for interim orders, save and except for any applications for costs, be otherwise dismissed and be removed from the list of pending cases awaiting hearing.

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 MELBOURNE

FILE NUMBER: MLC 1835  of 2017

Ms Soldo

Applicant

And

Mr Soldo

Respondent

REASONS FOR JUDGMENT

1. On 27 February 2017 the wife filed an Initiating Application. Time was abridged with respect to the interim orders sought by the wife in her Initiating Application and the matter was listed for hearing in the Judicial Duty List before me on 7 March 2017.

2. The orders the wife seeks can be categorised as follows:

   a)orders requiring the proceeds of sale of a property owned by an entity controlled by the husband to be placed in a controlled monies account pending further order;

   b)orders restraining the husband from altering the structure of or in any way diminishing his interest in or control of the companies which he controls or in which he and/or the wife have an interest;

   c)an order for the sole use and occupation of the former matrimonial home;

   d)orders with respect to the financial support of the wife and the children provided by the husband; and

   e)orders with respect to the ongoing conduct of the matter including discovery and the appointment of experts to value the entities controlled by the husband or in which he has an interest.

Background

1. The parties in this case commenced a relationship in 2007 and were married in 2008. According to the wife they separated in or about August 2016. There are two children of their relationship who are seven and three years of age respectively. The children live with the wife and spend time with the husband by agreement. Although the husband’s solicitors have forwarded correspondence to the wife’s solicitors requesting additional time with the children, there are presently no parenting proceedings.

2. There is no dispute that since separation the husband has continued to provide financial support for the wife and the children. The wife continues to receive a salary of $130,000 paid by B Pty Ltd (“BPL”), has the use of a company credit card up to a limit of $7,000 per month and the husband pays all the outgoings on the former matrimonial home, in which the wife and the children live, the wife’s motor vehicle expenses as well as the cost of the children’s nanny.

3. The husband is 64 years of age and is by trade a primary producer operating his own businesses since approximately 1980. The husband also has a second business in animal breeding and competition. It is common ground that the husband’s business interests (“the Soldo Group”) include a number of corporate entities and trusts which he owns and controls, some of which are part owned by third parties not a party to these proceedings. It is the husband’s case that it is his primary industry interests that have been the primary source of income for him and his family and the Soldo Group generally. It is also the husband’s case that the majority of this corporate structure was established 20-30 years ago, well before the parties in this case commenced cohabitation. This structure includes the C Trust which owns the D Town property, the proceeds of sale of which are the subject of dispute in this case.   

4. The wife annexed a diagram to her Affidavit setting out the structure of the Soldo Group prepared by the Soldo Group’s accountants, which the husband agrees clearly identifies and records his interests and that of the other owners in the Soldo Group save and except that he deposes that there is an error with respect to the interest of BPL in E Pty Ltd (“EPL”) which should read 27.5 per cent not 33.5 per cent and that Mr F is incorrectly recorded as a director of G Pty Ltd (“GPL”) as trustee of GPL Unit Trust. It is also common ground that the parties’ assets are in the range of $65 million. This includes the Soldo Group, which based upon an aggregated balance sheet for the Soldo Group provided to the wife by the Soldo Group’s accountants in December 2016, is valued at approximately $61 million.

5. There is no dispute that the wife was until recently a director of three of the entities in the Soldo Group. The husband’s evidence is that it has been his practice from time to time to appoint directors to companies in the Soldo Group who have no underlying interest in those entities to sign documents at his direction when he is unavailable, it being the nature of his business that he spends significant periods travelling and overseas. It was on this basis he says that in 2008 the wife was appointed as a director of BPL, H Pty Ltd (“HPL”) and I Pty Ltd (“IPL”) as trustee for the IPL Family Trust. Although as yet there has been no opportunity to test the evidence, counsel for the wife did not take issue with this aspect of the husband’s evidence and it is in any event generally consistent with the wife’s own evidence as to the lack of any real understanding as to the assets and/or income of HPL or the Soldo Group generally and the fact that the husband did not remove the wife as a director of IPL which owns a property in northern Queensland and is not involved in the business activities of the Soldo Group. The situation with respect to BPL is somewhat different as the wife has been actively involved in the operations of BPL since her employment with the company in 2004, albeit less actively since the birth of the parties’ second child.  

6. On 24 January 2017 the husband advised the wife by text message that he had removed her as a director of BPL, the company through which the husband conducts his second businesses activities and HPL,  which is the trustee of the Soldo Investment Trust No 1 and one of the entities engaged in primary industry. That text message, a copy of which is annexed to the wife’s Affidavit, reads as follows:

   Hi [Ms Soldo] a short note to let you know given where we are at I have removed you as a director of [B Pty Ltd] and [HPL] this won’t affect your current financial situation also you have probably heard by now I have put [Mr J] off [Mr Soldo].

7. It is the husband’s evidence that he removed the wife as a director of BPL and HPL, not only because the marriage had broken down, but because communication between he and the wife, both personally and with respect to their financial affairs, had also broken down. The husband deposes that

   When [Ms Soldo] ceased communicating with me about any financial and business matters, and directed me not to raise these maters with her, I could not, commercially, keep her on as a director and run the risk of her frustrating the business operation.

   Although, as previously referred to the evidence has not been tested, the wife did not take issue with the husband’s evidence in relation to this issue.  I also note that although the husband did not file his answering material until the day of hearing, which is not all that surprising given time had been abridged for the hearing of the matter, there was no application for an adjournment to enable the wife to file answering material.

8. On 6 February 2017 the wife’s solicitors forwarded a letter to the husband advising inter alia as follows

   Our client has further advised us that you sent her a text message on 24 January 2017 advising that:

   1.You have removed her as a director of [B] Pty Ltd and [H] Pty Ltd, without explanation or prior notice; and

   2.You terminated the employment of Mr [J] without consulting our client.

   …

   Please advise us the reasons for the above action taken by you, and explain what legitimate business purpose they serve. Given that [H] Pty Ltd is the trustee of the [Soldo] Unit Trust No 1, our client is concerned that you have taken these steps in an attempt to exclude her from the [Soldo] Group. Our client was also concerned to hear of Mr [J’s] dismissal, given the assistance he provides to her whilst working from the home office at the former matrimonial home.

   …

9. On 10 February 2017 the wife’s solicitors sent a further letter to the husband as follows:

   Further to our letter dated 6 February 2017, we are further instructed that a property at [K Street], [D Town] (being approximately 1,200 acres of land) was recently sold by [C] Pty Ltd ATF the [C] Family Trust for approximately $7.6 million, and that settlement of the sale of the property is due to occur on 8 March 2017.

   As you will appreciate, our client’s understanding of the [Soldo] Group and the assets held therein is less comprehensive than yours, and she will naturally require the production of discoverable documents from you in order to address property settlement matters. We will shortly forward a list of discoverable documents we require you to provide in accordance with your obligation to make full and frank disclosure of your financial circumstances.

   In the meantime, we require your immediate undertaking in writing that you will hold the proceeds of sale of the [D Town] property within the [C] Family Trust, and not disburse or distribute any proceeds without first providing our client with 21 days’ written notice, and full particulars of the proposed dealing including the amount of the proposed distribution and the full name of the proposed beneficiary. Given that you are the sole director of the trustee company, such an undertaking is entirely within your control to give. 

   Our client wishes to address property and parenting matters amicably by negotiation, without recourse to litigation. The undertaking our client seeks is required simply to preserve the assets of the marriage pending final agreement between the parties. If, however, your undertaking is not forthcoming, our client may need to file an urgent application with the Family Court of Australia.

10. The husband having instructed solicitors on 21 February 2017, those solicitors wrote to the wife’s solicitors as follows:

    We refer to your letter dated 10 February 2017 and our subsequent discussions.

    Until further notice, our client will agree not to deal with the proceeds of sale of the [D Town] property unless it is necessary for the following purposes relating to the [Soldo] Group:

    1.Reduction of debt including taxation liabilities; or

    2.As working capital; or

    3.As per advice received from the parties’ accountants, [L Accountants].

    Noting Ms [Soldo] is a client of [L Accountants], there is of course no objection to your client contacting the accountants to discuss any matters she wishes relating to their advice.

    As your client is aware, we confirm the purchaser’s net deposit was received and applied last year.

    We trust the above adequately addresses your concerns. 

11. On 22 February 2017 the wife’s solicitors responded to the husband’s solicitors and stated as follows

    With respect, it is difficult to see how the contents of your correspondence dated 21 February 2017 could possibly “adequately address [our] client’s concerns”

    Our client has requested 21 days’ prior written notice of any intended dealing with the sale proceeds by your client. Your letter in response refuses to give that notice, and instead, merely indicates that the proceeds will be applied to “reduction of debt”, “working capital” or “as per advice received from the parties’ accountant [L Accountants].”

    These categories, in the absence of further particulars, are so broad and ambiguous that they essentially cover any potential dealing that your client may choose to effect, all without our client’s prior notice or consent.

    …

    Regrettably, your client’s refusal to undertake to provide our client with any prior notice of your client’s dealings with the sale proceeds leaves her with no choice but to bring an urgent application in the Family Court of Australia.

12. Neither party refers to or relies upon any further correspondence passing between the parties or their respective solicitors until after the wife issued her Initiating Application and sought an abridgement of time for the hearing of her application for interim orders.

Injunctive Relief in relation to Sale Proceeds of D Town and the Corporate Structure of the Soldo Group

1. In support of her application seeking to restrain the husband from dealing with the D Town proceeds and to prevent any further changes in the corporate structure of the Soldo Group, the wife relied upon two pieces of evidence. Firstly that the husband had unreasonably refused her reasonable requests for an undertaking that he provide her with 21 days prior written notice of any intended dealing with the sale proceeds. Secondly that a matter of weeks before the husband had, without her prior knowledge and/or consent, removed her as a director of BPL and HPL and terminated Mr J’s employment, The wife also relied upon what she submitted was the husband’s failure to respond to her requests for an explanation as to his reasons and/or any legitimate business purpose he may have had for doing so.

2. Counsel for the wife submitted that not only had the husband not provided any explanation for the wife’s removal as a director until he filed his answering material, but that even though the husband deposed to communication problems between he and the wife, he provided no particulars of any difficulties which might have necessitated the wife’s removal as a director.  

3. Counsel for the wife also submitted that applying the balance of convenience test, which he said was the test to be applied in this case, the balance would weigh in the wife’s favour. In support of this submission and his submission that the husband had unreasonably refused the wife’s reasonable request for an undertaking not to deal with the sale proceeds, he relied upon the following matters:

   a)the husband’s evidence that all of the businesses except for BPL are trading profitably and that therefore he would not need the sale proceeds for cash flow in any of those entities;

   b)That in so far as the sale proceeds might be necessary for cash flow purposes, there were no particulars provided either in the letter he instructed his solicitors to write in response to the wife’s request or his Affidavit;

   c)That although the husband deposed to there being an $8.5 million business facility secured over the primary business’s quotas and secured against the D Town property, the mortgagee was not requiring either the reduction of any borrowings or alternative security for existing borrowings. To the contrary the mortgagee was content to release that land and/or the proceeds of sale as security.

4. Counsel for the wife also addressed what he said was the lack of any evidence adduced by the husband and what he submitted was the husband’s failure to demonstrate that the restraints the wife sought to impose upon the husband in relation to the corporate structure had the potential to interfere with the both the rights of third parties and/or the operation of the Soldo Group generally. He submitted that on that basis, the balance of convenience would similarly weigh in the wife’s favour.  

5. In Waugh and Waugh (2000) FLC 93-052 (“Waugh”) the Full Court having considered the principles in other jurisdictions with respect to Mareeva injunctions and their applicability to proceedings for injunctive relief in this Court said at paragraph 45 and onwards as follows:

   45.With respect to the trial Judge, it appears that he did not have in mind any of the principles enunciated by their Honours of the High Court in the cases to which we have referred when he came to determine the proceeding before him, or, if he did, he did not consider or apply them to the facts of the case as disclosed by the evidence in those proceedings. In particular, we are unable to perceive from anything said by his Honour in his reasons for judgment….that he considered whether the injunctions which he ultimately granted were necessary, and went no further than necessary, to prevent the abuse or frustration of the court’s process in relation to the matter within its jurisdiction, particularly having regard to the nature of the wife’s claim in the property proceedings…..

   46.Whilst his Honour certainly seems to have considered issues of balance of convenience and hardship between the parties, it seems to us, with respect, that he did not give consideration to the fundamental question whether there was any evidence of any intention by the husband to dispose of any assets pursuant to any scheme to defeat any judgement which the wife might obtain in the substantive proceedings , or whether he merely wished to continue to trade, as he always had done, prior to and since the separation of the parties.

6. A differently constituted Full Court in Mullen and De Bry (2006) FLC 93-293 referring to the decision of the Full Court in Waugh said as follows at paragraph 44

   Their Honours did not say that the trial Judge had to find on the balance of probabilities, as a matter fundamental to success, that there was such a scheme.

   Put another way, all that the Court said in Waugh was that the trial Judge had taken a fundamentally flawed approach and ought have addressed the question of whether there was any evidence of intention, as part of an enquiry into the risk of disposal of assets to defeat judgment…(emphasis in original)

   The Full Court continued at paragraph 49 as follows

   In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order (emphasis in original).

1. Counsel for the husband submitted, in my view with some force, that the wife has not addressed the fundamental question identified in Waugh that the Court is required to determine, that is whether there was a risk the husband would dispose of assets to defeat judgment, focussing instead on the balance of convenience. He further submitted that the evidence the wife does rely upon is not in any event sufficient to establish that there is a risk of the husband disposing of assets in order to defeat any order the wife might seek for property settlement either with respect to the sale proceeds or the Soldo Group generally.

2. The husband told the wife that he had removed her as a director of the two companies. One might think the wife would have had more to be concerned about had he not done so and she had been left to find out by some other means. However, not only did the husband tell the wife that he had removed her as a director but, as counsel for the husband submitted, he also took steps to reassure her that this would not affect her current financial situation. This is not a course one would normally associate with someone intending to dispose of assets so as to defeat a possible order.

3. Whilst the wife complains about the husband not having responded to the letter from her solicitor dated 6 February 2017 requesting him to explain why she had been removed as a director, it is also the case that now the husband has deposed to his reasons for doing so, the wife does not take issue with either his evidence as to the reasons for her appointment as a director or her refusal to communicate with him in relation to financial matters, that being the reason for her removal. Nor has the wife sought at any time to be reinstated as a director.  

4. The other piece of evidence upon which the wife relies which she says must be viewed in the context of the husband having removed her as a director, is what she says was the husband’s failure to accede to her reasonable request for an undertaking that he not deal with the sale proceeds without first providing her with 21 days’ notice in writing and what was submitted was his inadequate proposal to address her concerns.

5. The wife’s case rests upon the assumption that her request for an undertaking with respect to the sale proceeds was reasonable and that the husband’s proposal in response was unreasonable. However, the wife, apart from expressing her concern that the disbursement of the sale proceeds could compromise her ultimate entitlement to property settlement or that the husband might apply the sale proceeds to his gambling activities, has not adduced any evidence which supports the need for the requested undertaking, let alone an injunction restraining the husband from dealing with the sale proceeds. The basis of the wife’s case seems to be that it is the husband’s refusal to provide that undertaking which leads to the conclusion that there is a risk that he might deal inappropriately with the sale proceeds to her detriment, rather than any evidence which suggests that he might do so. I also accept as submitted by counsel for the husband, that even if the husband were to gamble away or otherwise dispose of the sale proceeds, there is no evidence to suggest that there would not be sufficient funds available to meet her entitlements. Nor does the wife suggest otherwise.

6. In so far as it was submitted to the effect that absent the husband demonstrating that the sale proceeds are necessary for the operations of the Soldo Group, the balance of convenience dictates that they should be held in a controlled account, I am satisfied that is not the test. The Court must apply the test in Waugh. Even if the husband had been required to establish the necessity for him to have access to the funds, I am satisfied that when viewed in the context of the general operation of these businesses over many years and the application of the proceeds of sale of the first parcel of land, to which the wife does not take any exception, that the husband’s proposal with respect to the application of the sale proceeds in response to the wife’s request for an undertaking was in all of the circumstances reasonable. Particularly so in circumstances where that offer makes it clear that the husband has no objection to the wife contacting the Soldo Group accountant to discuss any matters she wishes relating to any advice given by those accountants for the application of those sale proceeds. One might think that if the wife had been concerned that the disbursement of the sale proceeds had the potential to defeat her claim, an appropriate step in those circumstances would have been to contact either the husband, his solicitors and/or L Accountants and enquire as to what, if any of the categories of payments identified by the husband, were likely to be necessary rather than to issue proceedings as she has done.

7. The wife’s case for injunctive relief with respect to the corporate structure similarly seeks to place the onus upon the husband of establishing why those orders should not be made, rather than requiring the wife to establish that they are necessary.  

8. It is common ground that the husband has been operating the various businesses within the Soldo Group for between 20 and 30 years, and arguably given the parties’ asset position, successfully so. The wife does not adduce any evidence to suggest that he has not done so in a proper and businesslike manner or that he will not continue to do so.

9. The husband also deposes to both the acquisition of the D Town property and the prior sale of a part of that property. The wife does not adduce any evidence to suggest that there was anything unexpected or inappropriate about the sale of the second parcel of land. 

10. I am satisfied that the husband in this case is, as the Full Court describes in Waugh, continuing to “trade” as he has always done. In my view the two pieces of evidence upon which the wife relies in support of her case, whether they are considered separately or together as counsel for the wife submits the Court should do, do not demonstrate any intention on the husband’s part to dispose of any assets for the purposes of defeating the wife’s claim. In those circumstances I propose to dismiss the wife’s application for injunctive relief both with respect to the orders affecting the structure of the Soldo Group and with respect to the proceeds of sale of the D Town property.

Sole Use and Occupation of the Former Matrimonial Home

1. Counsel for the wife referred me to the decision of Davis and Davis (1976) FLC 90-062 (“Davis”) in support of his case that the Court should make an order for sole use and occupation of the former matrimonial home in the wife’s favour. In Davis the Full Court said at 75, 309 as follows:

   The criteria for the exercise of the power under s114(1) are simply that the court may make such order as it thinks proper.

2. The Full Court went on to discuss matters that should be considered in determining whether it is proper to make an order and although that list is not intended to be exhaustive, the matters that were discussed by the Full Court are not particularly relevant to the circumstances of this case. The wife and the children have occupied the former matrimonial home and there is no evidence of the husband having in any way interfered with the wife’s occupation of that property or any suggestion that she should not continue to occupy the property. To the contrary, it is common ground that the wife will retain that property as part of her property settlement. There is no evidence that would suggest that this has ever been an issue between the parties.

3. Although it was submitted by counsel for the wife that it is reasonable, sensible and practical for the Court to make the order the wife seeks for sole use and occupation, that order is opposed and in those circumstances, as the order the wife seeks is in the nature of an injunction, the Court must be satisfied that it is proper to grant the injunctive relief she seeks.

4. The Court should not lightly exercise its power to grant injunctive relief and I am not satisfied that I should do so in this case. As counsel for the husband submitted, there was no need for the wife to seek an order for sole use and occupation of the former matrimonial home and it is reasonable in all of the circumstances of this case to infer that if she had not determined it necessary to issue proceedings for the purposes of seeking urgent injunctive relief she would not have issued proceedings for the purpose of seeking either sole use and occupancy of the former matrimonial home or spousal maintenance. I am left with the strong impression that the wife’s application for sole use, spousal maintenance and for that matter the procedural orders she seeks were added to her application with little reflection upon whether or not the orders she sought were necessary and even if necessary, were premature and with little consideration of the evidentiary foundation for the making of those orders.  This unfortunately does not sit well with the wife’s stated wish that she and the husband amicably address both property and parenting matters.

5. The husband in this case opposes the orders the wife seeks for both sole use and financial support. He says they are unnecessary. I am not satisfied that I should, just because the parties happen to be before the Court, make orders for the sake of doing so rather than because it is necessary to do so.

Financial Support

1. The wife also seeks orders maintaining what she describes as the existing financial arrangements in circumstances where there is no suggestion that the husband has attempted to reduce any of the amounts he pays to the wife or for her benefit or expressed or demonstrated any intention to do so. To the contrary the wife deposes that the husband has told her that her financial circumstances will not change. At its highest the wife’s case is that she is concerned that this might change now she has issued the proceedings.

2. However, notwithstanding the fact that the wife has instituted proceedings, the husband has not altered the financial arrangements for her support. As previously discussed, the wife’s application seems to be one based upon convenience of getting orders in circumstances where the parties are before the Court without any consideration of the necessity for the orders she now seeks.  

Conduct of the Proceedings

1. The final category of orders sought by the wife relate to the future conduct of the matter. The wife seeks the following orders:

   4.That the husband and the wife do all such acts and things and sign all such documents as may be necessary to appoint a single joint expert to provide a valuation of the parties’ interests in the following entities:

   4.1.      [B] Pty Ltd;

   4.2.      [E] Pty Ltd;

   4.3.      [IPL] Family Trust;

   4.4.      [Soldo] Investments Trust No. 1;

   4.5.      [M] Unit Trust;

   4.6.      [GPL] Unit Trust;

   4.7.      C Family Trust

   4.8.      [N] Unit Trust; and

   4.9.Any other entity or trust in which the Husband has a legal or beneficial interest, or in respect of which the husband holds a power of appointment;

   (the entities), such expert to be agreed between the parties and in default of agreement, to be [Ms O], of [O] Forensic Accounting

   5. That each party provide full and frank financial disclosure to the other, as provided for in Rule 13.04 of the Family Law Rules 2004 (Cth), within 28 days.

   6. That within 14 days of a request for the provision of any of [sic] documents or information to which the duty of disclosure applies, the party so requested provide such documents or information to the requesting party.

2. Counsel for the husband submitted that orders 5 and 6 sought by the wife are unnecessary as these are matters which are in any event provided for in the Family Law Rules 2004 (Cth) (“the Rules”). I accept that submission.

3. Pursuant to the Rules, parties to proceedings are required to comply with the pre-action procedures. There is an exception to that rule when a party makes an urgent application. However in this case although the wife made an urgent application for injunctive relief, I do not propose to make the orders she seeks.

4. I am mindful of the fact that the parties in this case have separated relatively recently. Not only have the parties not complied with the pre-action procedures, it appears to not be in dispute that to date the parties have not exchanged any documents. In fact the husband deposes to the fact that the wife has not requested inspection or disclosure of any documents of him or his accountants.

5. In my view the procedural orders the wife seeks, and particularly the order for the appointment of single experts to value the Soldo Group, are, even if ultimately necessary, premature. The valuation of the Soldo Group is likely to be both an expensive and time consuming process. Although it is likely that the Soldo Group will need to be valued, that is not always the case and I do not propose to make orders for that purpose at this stage of the proceedings. That of course does not prevent the parties, as provided in the Rules, agreeing upon and appointing a single expert to adduce evidence as to value if it is necessary to do so. These are matters I am satisfied should be explored by the parties before the Court makes orders.

6. The question then arises as to what should happen with this matter procedurally from this point. I accept, as submitted by counsel for the wife, that this is not a case which is likely to be assisted by a conciliation conference. I am hopeful that the parties are, as they both say, committed to resolving this matter amicably and I propose to adjourn the applications for final orders together with paragraphs 4, 5 and 6 of the Application for interim orders for hearing in the Registrar’s Duty List on a date to be fixed after 1 July 2017 to allow them that opportunity. 

7. Finally the parties have agreed that the wife receive a partial property settlement of $500,000 to be paid out of the sale proceeds. I am satisfied that in all of the circumstances it is just and equitable and otherwise proper to make that order.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 24 March 2017.

Associate: 

Date:  24 March 2017