Trendor and Trendor - [2018] FamCA 944

FAMILY COURT OF AUSTRALIA

TRENDOR & TRENDOR

[2018] FamCA 944

FAMILY LAW – PROPERTY – Interim – Where the husband’s application to for interim spousal maintenance is dismissed – Where various trialable issues were unable to be determined on an interim basis – Where the husband has failed to provide complete disclosure – Where a forensic accountant is to be engaged.

Family Law Act 1975 (Cth) ss 72, 75
APPLICANT:	Mr Trendor

RESPONDENT:

Ms Trendor

FILE NUMBER:

BRC

5389

2016

DATE DELIVERED:

20 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Baumann J

HEARING DATE:

6 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Alexander

SOLICITOR FOR THE APPLICANT:

Barry.Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr J Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

DA Family Lawyers

Orders

That the husband’s application for spousal maintenance is dismissed.
That the husband’s application for a partial property adjustment and/or an order for litigation funding is dismissed.
That within fourteen (14) days of the date of this Order, the wife nominate one (1) of the following panel of experts to be appointed a Single Expert pursuant to Rule 15.45 of the Family Law Rules 2004 (“the Rules”) to report on the value of the property, including a forensic analysis of all bank and investment accounts held in the parties’ sole and/or joint names and/or in the name of related entities as and from 24 December 2007 to the current date:
(a)       Mr B of C Accountants;
(b)       Mr D of E Accountants ; or
(c)       Mr F of G Accountants,
with such Expert to be retained on the following terms:
(d)Any Expert appointed in accordance with this Order will be provided with a joint letter of instruction by the parties but if the parties are unable to agree for any reason, the joint instructions will be separately provided to the Expert by each parties’ legal representative. The parties will advise any Expert of the date for which any report is required;
(e)The parties shall comply with any reasonable request of the Court Expert to provide information and documentation to complete the report; and
(f)The costs of the Court Expert appointed pursuant to this Order is to be paid equally from funds held in trust with DA Family Lawyers in the Westpac Bank Case Reserve Bonus Account number #92 to a limit of $50,000.
That the parties have liberty to apply for further directions in respect of the appointment of and instructions to the Expert.
That the costs of the husband’s amended Application in a Case filed 19 July 2018 be reserved to the trial.

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 Trendor & Trendor 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trendor and Trendor

Details

AGLC: Trendor and Trendor [2018] FamCA 944
Case: [2018] FamCA 944
Decision Date: 20 November 2018

CaseChat Overview and Summary

In *Trendor and Trendor*, Baumann J of the Family Court of Australia considered applications made by the husband for spousal maintenance, a partial property adjustment, and litigation funding. The wife sought orders relating to the appointment of a single expert to value the parties' property and conduct a forensic analysis of their financial accounts.

The primary legal issues before the court were whether the husband was entitled to spousal maintenance and a property adjustment, and the terms upon which a single expert should be appointed to value the parties' assets and investigate their financial dealings. The court also had to determine the allocation of costs for the expert's report.

Baumann J dismissed the husband's applications for spousal maintenance and a property adjustment. However, the court ordered the appointment of a single expert to report on the value of the property, including a forensic analysis of all bank and investment accounts held by the parties and related entities from 24 December 2007 to the present date. The wife was to nominate one of three specified accountants for this role, with the expert to be provided with joint instructions or separate instructions if agreement could not be reached. The parties were to comply with the expert's reasonable requests for information, and the costs of the expert, up to $50,000, were to be paid equally from funds held in trust. The costs of the husband's amended application were reserved to the trial.

Orders

Orders of the court

That the husband’s application for spousal maintenance is dismissed.

That the husband’s application for a partial property adjustment and/or an order for litigation funding is dismissed.

That within fourteen (14) days of the date of this Order, the wife nominate one (1) of the following panel of experts to be appointed a Single Expert pursuant to Rule 15.45 of the Family Law Rules 2004 (“the Rules”) to report on the value of the property, including a forensic analysis of all bank and investment accounts held in the parties’ sole and/or joint names and/or in the name of related entities as and from 24 December 2007 to the current date:

(a) Mr B of C Accountants;

(b) Mr D of E Accountants ; or

with such Expert to be retained on the following terms:

(d) Any Expert appointed in accordance with this Order will be provided with a joint letter of instruction by the parties but if the parties are unable to agree for any reason, the joint instructions will be separately provided to the Expert by each parties’ legal representative. The parties will advise any Expert of the date for which any report is required;

(e) The parties shall comply with any reasonable request of the Court Expert to provide information and documentation to complete the report; and

(f) The costs of the Court Expert appointed pursuant to this Order is to be paid equally from funds held in trust with DA Family Lawyers in the Westpac Bank Case Reserve Bonus Account number #92 to a limit of $50,000.

That the parties have liberty to apply for further directions in respect of the appointment of and instructions to the Expert.

That the costs of the husband’s amended Application in a Case filed 19 July 2018 be reserved to the trial.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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