Werner & Werner

[2021] FamCA 121

FAMILY COURT OF AUSTRALIA

Werner & Werner [2021] FamCA 121

File number(s):	SYC 7563 of 2019
Judgment of:	REES J
Date of judgment:	16 March 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Review of registrar’s decision – Hearing de novo on papers – Where registrar made orders for parties to provide the remuneration report of the jointly appointed expert to the single joint forensic expert – Where the husband disputes the reliability of the single expert remuneration report – Where the husband seeks to discharge the jointly appointed remuneration expert and provide his own lay opinion – Where no application made by the husband to rely on an adversarial expert – Application dismissed.
Legislation:	Family Law Rules 2004 (Cth) r 15.49 (2)
Number of paragraphs:	21
Date of last submission/s:	16 March 2021
In Chamber:	16 March 2021
Place:	Sydney
Counsel for the Applicant:	Mr Campton SC
Solicitor for the Applicant:	Pigdon Norgate Family Lawyers
Solicitor for the Respondent:	Mr Johnson, Dorter Family Lawyers & Mediators

ORDERS

SYC 7563 of 2019

BETWEEN:

MR WERNER

Applicant

AND:

MR WERNER

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	16 MARCH 2021

THE COURT ORDERS:

1.That the husband’s Application in a Case filed on 12 February 2021 is dismissed.

2.That Order 2 made by Registrar Mordaunt on 25 February 2021 is discharged.

3.That leave is given to the parties to file and serve within 7 days any affidavit material and submissions in relation to the costs of the husband’s Application in a Case filed on 12 February 2021, noting that the matter will be dealt with in chamber.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Rees J:

1. Proceedings between Mr Werner (“the husband”) and Ms Werner (“the wife”) in relation to their property were commenced on 8 November 2019.

2. On 22 January 2021, a registrar made the following procedural orders and directions:

   IT IS ORDERED, DIRECTED AND NOTED THAT:

   1.I note that this matter was listed before me today in chambers in respect of the Application in a Case filed by the Respondent/Husband on 19 November 2020 together with an Affidavit of Mr Werner dated 19 November 2020 and the Response to the Application in a Case filed by the Applicant/Wife on 2 December 2020 together with an Affidavit of Mr Werner of 2 December 2020.

   2. I note the additional material namely an affidavit of Mr C dated and filed 3 December 2020 and written submission from each of the party’s legal representatives.

   2.I order that the Order made on 10 December 2019 be varied and the valuation by the single joint expert forensic accountant Ms B of the parties interest in the various entities be as at 30 June 2020 not 30 June 2019.

   3.I order that within 7 days the Respondent/Husband cause his lawyers to submit the signed joint letter of instruction dated 18 September 2020 to the single joint forensic expert Ms B subject to the change in date for the valuation as per Order 2 herein and that such letter shall provide to Ms B the remuneration report of the jointly appointed expert Mr D.

   4.That in accordance with r15.66 the jointly appointed remuneration expert answer the questions put to him in the letter from the Husband’s lawyer dated 2 October 2020 and if not able to respond then he otherwise comply with the aforesaid rule.

   5.That the Husband’s lawyer forthwith cause to be served on Mr D a copy of the orders made today.

   6.That the balance of the outstanding Application be listed before me in chambers on 19 March 2021and no appearances are required.

3. The husband has filed an application to review Order 3 made by the registrar and thus the matter comes before me as a hearing de novo.

4. Both parties have filed affidavits and written submissions in relation to the review and the matter is dealt with in chamber without hearing further from the parties.

5. The gravamen of the husband’s position is that he disputes the reliability of the conclusion of the remuneration expert, Mr D, who was appointed as a single expert by the parties for the purpose of providing to Ms B, who is valuing the corporate entities as a single expert, evidence of the appropriate remuneration of the husband for a specified period.

6. In lieu of Order 3, the husband seeks the following orders:

   1.Pursuant to the mechanism in Rule 15.54(4) of the Family Law Rules 2004, he be granted leave, if necessary, to forward a notice of contended facts to [Ms B]…

   2.The appointment of [Mr D], as the single remuneration expert, be discharged.

   3.The Wife pay the Husband’s costs of an (sic) incidental to this Review.

7. The application is opposed by the wife.

8. Mr D was engaged by the parties to prepare an opinion as to the commercial remuneration of an executive in the position of the husband within the corporate structure for the 2016 to 2019 financial years. He prepared a report dated 14 September 2020.

9. Relevantly, the report relies on “The market rates of pay for similar size companies…in the same industry sector…”

10. On 2 October 2020, the husband’s solicitors wrote to Mr D seeking further information including, relevantly, the source documents or literature upon which he relied to form the basis of his assertion of the “market rates of pay for similar size companies…” The letter contained 12 specific questions, some of multiple parts, which, on their face, seek to clarify the basis upon which Mr D formed his opinion.

11. Mr D did not respond to the letter or provide the information requested.

12. As I understand the submissions of the wife, she relies on Mr D’s opinion.

13. Clearly, at trial, the husband will challenge the reliability of Mr D’s report and the utility of Ms B’s placing any weight upon his opinions.

14. The husband proposes that he be permitted to provide to Ms B, in lieu of Mr D’s opinion as to commercial remuneration, his own opinion.

15. The husband’s opinion about his remuneration would not be admissible in the substantive proceedings and could not form a basis upon which Ms B could rely.

16. If the husband were able to convince the trial judge that no weight could be given to Mr D’s opinion, then Ms B would be left with no evidence upon which to form her ultimate opinion of value.

17. The Family Law Rules 2004 make provision for the appointment of an adversarial expert in specified circumstances as provided in Rule 15.49 (2):

    (2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:

    (a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;

    (b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or

    (c)there is another special reason for adducing evidence from another expert witness.

18. No application has been made by the husband for leave to adduce evidence from an adversarial expert.

19. If the husband obtains an adversarial opinion, with the leave of the Court, then that opinion can be provided to Ms B and she can provide her opinion as to the value based on both experts’ opinions as to remuneration.

20. Absent an opinion of an adversarial expert, Mr D’s opinion should be provided to Ms B.

21. It follows that the husband’s application will be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       16 March 2021