Unterbrink & Unterbrink

Case [2025] FedCFamC1F 280

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Unterbrink & Unterbrink [2025] FedCFamC1F 280

File number MLC 12191 of 2022
Judgment of WILSON J
Date of judgment 2 May 2025
Catchwords  FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE AND PROCEDURE – the husband seeking disclosure regarding the respondent’s interest in a partnership in India – the respondent contending that the documents are not in her possession, power or control, that litigation on foot in India prevents her from complying with her disclosure obligations and that by force of Indian law she is required to maintain confidentiality of the partnership documents – held, the respondent must give disclosure of the documents sought by the applicant.  
Legislation

Evidence Act 1995 ss 79 and 138

Family Law Act 1975 ss 79, 95 and 96

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 6.01 and 6.03

Indian Partnership Act 1932 ss 9 and 12(e)

Cases cited

Bacall & Zagar [2020] FamCA 350

Coco v A.N. Clarke (Engineers) Ltd [1969] RPC 41

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640

Honeysett v The Queen (2014) 253 CLR 122

In the Marriage of Black & Kellner (1992) 15 Fam LR 343

In the Marriage of Briese (1985) 10 Fam LR 642

In the Marriage of Giunti (1986) 11 Fam LR 160

In the Marriage of Weir (1992) 16 Fam LR 154

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1

Joseph Street Pty Ltd v Tan [2012] VSCA 113

Lang v The Queen (2023) 278 CLR 323

Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424

Lonrho v Shell Petroleum Co Ltd [1980] 1 WLR 627

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

Palmdale Insurance Ltd (in liq) v L.Grollo & Co Ltd [1987] VR 113

Paviello & Paviello [2022] FedCFamC1F 592

Sheffield District Railway Company v Great Central Railway Company (1911) 27 TLR 451

Stanford v Stanford (2012) 247 CLR 108

Sun & Yeng No 5 [2024] FedCFamC1F 702

Wheeler v Le Marchant (1881) 17 Ch D 681

Woodcock v Woodcock (2021) 64 Fam LR 489

Division Division 1 First Instance
Number of paragraphs 74
Date of hearing 14 April 2025
Place Melbourne
Counsel for the applicant Mr M. Robins KC with Mr D. Mort
Solicitor for the applicant VDG Lawyers
Counsel for the respondent Mr J. Williams
Solicitor for the respondent Accord Family Law

ORDERS

MLC 12191 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MR UNTERBRINK

Applicant
AND

MS UNTERBRINK

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

2 MAY 2025

THE COURT ORDERS THAT –

1.Within three days, the respondent wife must do all acts and things, sign all necessary documents, and take all steps necessary to enforce her legal rights –

(a)as a partner…

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AGLC
Unterbrink & Unterbrink [2025] FedCFamC1F 280
Case
[2025] FedCFamC1F 280
Decision Date

CaseChat Overview and Summary

In the case of Unterbrink v Unterbrink, the husband sought disclosure of documents pertaining to the wife's interest in a partnership in India, which was a significant asset in the property aspect of their litigation. The wife argued that the documents were not in her possession, power, or control, that litigation in India prevented her from complying with her disclosure obligations, and that Indian law required her to maintain confidentiality of the partnership documents. The court was required to determine whether the wife was required to disclose the partnership documents and the consequences of any failure to do so. The court examined the duty of disclosure under the Family Law Act and Rules, and the consequences of non-compliance as surveyed in Paviello & Paviello, Bacall & Zagar, and other authorities.

The court found that the wife was required to disclose the partnership documents. The court noted that the wife's interest in the partnership was a significant asset in the property aspect of the litigation, and that the husband was entitled to disclosure of all documents relevant to that asset. The court rejected the wife's argument that Indian law prevented her from disclosing the partnership documents, finding that the duty of disclosure under the Family Law Act and Rules took precedence over any conflicting foreign law. The court also rejected the wife's argument that litigation in India prevented her from disclosing the partnership documents, finding that the wife had not demonstrated that such litigation actually prevented her from disclosing the documents.

The court ordered the wife to give disclosure of the documents sought by the husband, and refused to make any orders sought by the wife. The court noted that the wife's failure to disclose the partnership documents had caused substantial delays in the progress of the case, and that the consequences of such non-compliance were set out in Bacall & Zagar and other authorities. The court ordered the wife to enable the husband's expert valuer to examine the partnership books of account and prepare a sworn valuation report of the wife's interest in the partnership. The court also set out a timetable for the further progress of the case, including the filing of the husband's statement of claim and the wife's defence, and the hearing of the issue of costs. The court's orders were subject to review or variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

MLC 12191 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MR UNTERBRINK

Applicant

AND

MS UNTERBRINK

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

2 MAY 2025

THE COURT ORDERS THAT –

1. Within three days, the respondent wife must do all acts and things, sign all necessary documents, and take all steps necessary to enforce her legal rights –

(a) as a partner of the partnership business known as ‘B Partnership’ located at Property C, Region D, India (“B Partnership”), and

(b) pursuant to clause 10 of the partnership deed of B Partnership dated 1 June 2001 and clause 11 of the partnership deed of B Partnership dated 1 December 2021,

so as to enable E Pvt Ltd (“E Pvt Ltd”) to attend at the principal place of business of B Partnership (as representatives of the respondent wife) to examine, verify and take notes of the regular books of accounts of B Partnership, to enable E Pvt Ltd to proceed with the valuation of the respondent wife’s partnership interest in B Partnership and to provide the parties and this court with a sworn valuation of the respondent wife’s interest in B Partnership.

2. Within seven days, the applicant husband be at liberty to provide to E Pvt Ltd the documents of B Partnership as disclosed by him to the respondent wife in his solicitor’s correspondence of 18 October 2023, 20 October 2023 and in particular the documents listed below so as to enable E Pvt Ltd to carry out the valuation of the respondent wife’s interest in B Partnership.

(a) the annual report and balance sheets of B Partnership for the period 2011/2012 through to 2018/2019;

(b) the GST certificate (i.e Form GST REG-06) of B Partnership dated 9 November 2021;

(c) the audit reports of B Partnership dated 15 September 2018;

(d) the email from Mr F to the applicant enclosing the T2 Master/Tracker outlining Plant and Machinery details of B Partnership;

(e) the daily reports of B Partnership dated 14 October 2021, 27 October 2021, 3 November 2021, 18 November 2021, 30 November 2021, 6 December 2021 and 16 December 2021;

(f) the B Partnership revenue tracker for the period July 2021 to September 2021; and

(g) the B Partnership production chart for August 2021.

3. The documents disclosed to E Pvt Ltd pursuant to clause 2 above, shall be used by the parties for the purpose of obtaining the respondent wife’s interest in B Partnership and in these proceedings only and save for the parties being permitted to provide the said documents to their respective legal representatives, the parties shall not use the said documents for any other purpose.

4. E Pvt Ltd shall prepare a sworn valuation report as to the value of the wife’s interest in the B Partnership pursuant to –

(a) E Pvt Ltd’s attendance at the principal place of business of B Partnership as contemplated in clause 1 above; and/or

(b) the documents provide to E Pvt Ltd further to the order of 22 February 2024, and

(c) the receipt by E Pvt Ltd of the documents set out in clause 2 above.

5. Within seven days of E Pvt Ltd providing the sworn valuation report further to paragraph 4 above, the applicant’s solicitor to file the said report with the court.

6. The applicant must file and serve a statement of claim to a standard commensurate with a proceeding in the Federal Court of Australia by noon on 2 June 2025.

7. The respondent must file a defence to a standard commensurate with a proceeding in the Federal Court of Australia to the applicant's statement of claim by noon on 2 July 2025.

8. Any reply by the applicant to the respondent’s defence must be filed and served by noon on 16 July 2025.

9. Submissions and affidavits on which the applicant wishes to rely in relation to costs must be filed and served by noon on 2 June 2025.

10. Submissions and affidavits on which the respondent wishes to rely in opposition to the applicant's submissions and affidavits must be filed and served by noon on 2 July 2025.

11. The further hearing of this proceeding is fixed for mention at 10.00am on 17 July 2025.

12. This proceeding is fixed for a hearing to determine the issue of costs for a duration of 1 hour commencing at 10.00am on 17 July 2025.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These are my reasons for ordering the wife to give disclosure of the documents sought by the husband. I refuse to make orders sought by the wife.RELEVANT BACKGROUND The parenting aspect of this litigation concerns a child born 2013 and another child born 2018. The parents married in 2010 and separated in late 2021 or mid-2022. The major asset in the property aspect of this litigation is the wife’s interest in a partnership of which her mother, father and sister are co-partners, constituted by partnership deed dated 1 June 2001. The partnership deed provided that each of the four partners has an equal quarter partnership share in the firm. A dispute exists between the husband and wife about the validity and legal efficacy of a document called “supplementary deed” dated 1 December 2021 in which the wife’s share in the partnership allegedly diminished from 25% to 5%. On 14 April 2025 I made orders – (a)entering this proceeding in the Major Complex Financial Proceedings List; and(b)ordering the case to go forward by pleadings. The case involves complicated issues of Indian partnership law. It also calls for precision in the formulation of the wife’s legal and equitable interests in the partnership for the purposes of Stanford v Stanford.[1] The proceeding was for a time been managed in Division 2 of this court. It was later transferred to Division 1 and pursuant to the orders made by the Chief Justice, the contested interlocutory dispute about disclosure was referred to me for determination. One of the issues on this contested application was the wife’s compliance with her duty of disclosure under the court rules, as surveyed by me in Paviello & Paviello.[2] Another was the consequences of any failure to make full and frank disclosure, whether for the asserted reasons or at all, in the manner canvassed by the authorities surveyed by me in Bacall & Zagar[3] and in other authorities.[4][1] (2012) 247 CLR 108.[2] [2022] FedCFamC1F 592.[3] [2020] FamCA 350.[4] Livesey (formerly Jenkins) v Jenkins [1985] 1 AC 424, In the Marriage of Briese (1985) 10 Fam LR 642, In the Marriage of Giunti (1986) 11 Fam LR 160, In the Marriage of Black & Kellner (1992) 15 Fam LR 343 and In the Marriage of Weir (1992) 16 Fam LR 154.THE B PARTNERSHIP DEED The nature and extent to which Indian partnership law applied to this s 79 application will be a contested factual matter at trial. For the purposes of Australian law, evidence of foreign law is a factual issue not a legal issue, as I examined in detail in Sun & Yeng (No 5).[5] In this case a single expert has purported to adduce evidence of Indian partnership law. The issues raised by that expert in part address matters bearing upon the legal and equitable interests of the wife in the partnership asset.[5] [2024] FedCFamC1F 702. For present purposes, it is desirable to point up the more significant matters in the partnership deed made 1 June 2001. Those include –(a)the partners are the wife’s parents and her sister each of whom has a one quarter 25% interest in the partnership (clause 4);(b)the nature of the partnership business is “export of [products]” and “any other variety of business as may be agreed upon between the partners from time to time” (clause 3);(c)the partnership created was a partnership at will (clause 5);(d)the partnership account ran between 1 April and 31 March;(e)a regular profit and loss account and balance sheet was to be drawn up on 31 March every year and the profits or losses as the case may be was to be divided and adjusted in the accounts of the partners as provided for in clause 4 (clause 6);(f)the contribution of capital and funds as may be required for the partnership was to be agreed from time to time (clause 7.1);(g)the wife’s parents were to work as working partners at a prescribed monthly remuneration (clause 8.1);(h)no partners were to engage in “any speculative business” (clause 9);(i)“regular books of account of the partnership business shall be maintained at the principal place of business and each partner or his nominee shall be entitled to examine them and take notes therefrom” at all times (clause 10); and(j)the partners would be faithful to one another (clause 12).

Evidence

Evidence Before The Court

The husband made a collection of serious allegations in his 24 January 2025 affidavit. Among them were the following – (a)notwithstanding the breadth and precision of orders for disclosure made on 8 December 2022, 16 December 2022 and 8 May 2023, the wife continues to be non-compliant in her disclosure obligations;(b)the wife has methodically diminished the value of her partnership assets by depleting the matrimonial pool of assets;(c)the wife has created substantial delays in the legitimate forward progress of this case by requiring the husband, his legal advisors and an expert valuer in this case to execute a non-disclosure agreement before certain allegedly confidential documents are produced;[9] and (d)the wife has endeavoured to apply illegitimate pressure to the husband by contending that she is unable to provide instructions or documents to the valuer E Pvt Ltd without risking being sued by the other B Partnership partners, that is to say, the wife’s mother, father and sister.[9] In Woodcock v Woodcock (2021) 64 Fam LR 489 I examined the observations of the Court of Appeal of the Supreme Court of Victoria about assertions of confidentiality on a party’s duty to give disclosure in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34.EVIDENCE ABOUT INDIAN LAW One of the issues in this case is whether the partnership financial records are discoverable at all. Evidence of Indian law has been put on affidavit. A single expert has been appointed. He is Mr G, a retired judicial officer of the P Court. He prepared a report dated 23 September 2024 described as a “single expert witness report”. Nowhere was the correspondence produced recording to the assumptions he was invited to make or the questions on which his opinion was sought. That rendered the task of interpreting his opinion very difficult. It was all the more difficult to measure Mr G’s opinion against the requirements of s 79 of the Evidence Act and the key cases that have construed the metes and bounds of opinion evidence.[10] Mr G’s background (or, for the purposes of s 79 of the Evidence Act, his “specialised knowledge based on the person’s training, study or experience”) was not explicitly recorded. That said, he holds a law degree from H University and has history working in the Indian legal profession including various judicial roles.[10] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, Honeysett v The Queen (2014) 253 CLR 122 and Lang v The Queen (2023) 278 CLR 323. He said he has “vast knowledge” (his words) on procedural and substantive laws including those of the Indian Partnership Act 1932. In paragraph 28 of his report he stated the following –“Thus, the wife was a partner in the firm having 25% share. The wife was entitled to get the profit, after due calculations thereof on the closure of the financial year. The wife was also to bear the loss, as per her share. The wife was not to get any extra amount or any remuneration. So long the partnership firm was in existence, the wife was entitled to the profits. She was also to bear the loss as per share. This right and interest of the wife had continued till 01.12.2021. Her marriage [in] 2010 did not change or alter her interest in the partnership firm “[B Partnership]”. She continued to get profit, as per her share. She had all those rights which were available to her under the Act. She was also to bear the proportionate loss in the firm.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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