Willmann & Willmann (No 8)
[2023] FedCFamC1F 575
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willmann & Willmann (No 8) [2023] FedCFamC1F 575
File number: SYC 6037 of 2021 Judgment of: CAMPTON J Date of judgment: 11 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Dispute as to the letter of instruction to be sent to the single forensic accounting expert – Where an order had been made previously that the husband would sign the proposed letter and he later sought to amend the letter – Order made for the wife to provide the proposed letter to the expert. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04, 7.13, 7.24, 7.25
Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 11 July 2023 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the First Respondent: Mr Frakes, Watts McCray The Second and Third Respondents: Did not participate ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WILLMANN
Applicant
AND: MR WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
order made by:
CAMPTON J
DATE OF ORDER:
11 JULY 2023
THE COURT ORDERS THAT:
1.The solicitor for the wife has leave to issue the letter of instruction to the valuer, Mr K, attached to these orders, copying the solicitors for the husband.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Willmann & Willmann (No 8) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These are financial proceedings between the wife, the husband and the wife’s parents. They have a long history in that:
(a)A separate issues trial was conducted by Tree J in March 2023 relating to a claim of the husband to a property legally owned by the wife’s parents. Judgment in respect of that issue is currently reserved, and is anticipated to be delivered in the immediate future; and
(b)The property adjustment proceedings between the wife and the husband pursuant to s 79 of the Family Law Act 1975 (Cth) are currently listed for trial before me over three days, commencing on 11 September 2023.
The litigation has been peppered by continued interlocutory disputes and skirmishes between the husband and wife as to the engagement of single expert witnesses. Relevantly:
(a)Orders were made on 17 November 2021 as to the appointment of a single forensic accounting expert (“the expert”) to value the corporate and other similar interests of the husband and wife;
(b)Applications in a Proceeding were filed by the husband and the wife in May and June 2022 as to the terms of the instructions to that expert;
(c)Consent orders were made on 26 September 2022 determining those outstanding Applications in a Proceeding confirming the terms of the letter of instruction to be provided to that expert;
(d)Despite the consent orders, further controversy has arisen between the husband and wife as to the terms of the updated instructions to be provided to that expert arose and hence the matter was again listed before me on 30 June 2023; and
(e)The husband’s solicitor confirmed at the listing before me on 30 June 2023 that the updated instructions to the expert were not the subject of further contest and the updated letter of instruction would be executed in the terms as sought by the wife (it being attached to a minute of order sought) by the husband’s solicitor on that day.
Cast against that background, an order was made on 30 June 2023 in the following terms as sought by the wife:
14.Within 2 days of the date of these orders, the husband’s lawyer’s sign the letter of instruction to the valuer, [Mr K], attached to these orders and marked A and then provide it to the solicitor’s for the wife so that the letter and its attachments can be provided to [Mr K].
The further following order sought by the wife was deemed unnecessary and was refused.
15.In the event the solicitors for the husband does not comply with Order 14, the solicitor for the wife has leave to issue the letter of instruction to the valuer, [Mr K], attached to these orders and marked A, copying the solicitors for the husband.
After the hearing on 30 June 2023, further dispute has arisen between the parties as to that same letter of instruction identified in order 14 made 30 June 2023.
The husband has sought to depart from what was in reality a fixed set of instructions to the expert developed from the orders made on 26 September 2022 to date, save and except for the provision of updated material and a changed date as to the valuation opinion.
Further correspondence passed between the respective solicitors grounded from the husband’s desire to incorporate further instructions to the expert. Those amendments are identified in Exhibit 3, being the proposed amended letter of instructions, as follows:
In the interest of both parties, we request that the valuation be conducted on the four alternative scenarios of:
1. Not normalized, and each entity valued;
2. Normalized and each entity valued;
3. Not normalized, and valued as a group;
4. Normalized and valued as a group.
(As per the original)
The wife identifies correctly the historical disputes between she and the husband as to the terms of the instructions to be provided to the expert, her reliance on what was advised to the Court on behalf of the husband on 30 June 2023 and the necessity for the expert to be expeditiously instructed having regard to proximity of forthcoming trial. She further identifies the matters contained in the orders I made in chambers on 7 July 2023, as follows:
2. The parties are on notice as to the likelihood of orders for costs in circumstances where it is determined that the relisting of a matter has occurred subsequent to the unreasonable failure or neglect of a party and/or a parties to comply with the overarching purpose of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as provided for in r 1.04 and s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The husband submits that the proposed amendment to the instructions to be provided to the expert is to convey “guidance” to the expert, so that he can consider alternate methodologies to opine as to a value of the minority interests of husband and wife in what is described loosely as the “E Group”. It is his submission that the amendment is nothing more than a “request” that consideration be given by the expert to alternate scenarios for the purposes of the opinion.
The husband identifies that amending the terms of the expert’s instructions at this time will ensure that he and the wife are not time deprived once they receive the expert’s opinion prior to the trial, such that any other foundations as to the expert’s opinion can be appropriately clarified or explored.
I do not accept that the proposed amendment amounts to some sort of guidance to be provided to the expert. Rather, it directs the expert to conduct an opinion on the basis of four alternate scenarios. It is not a suggestion. I accept the submission of the wife that it is a matter for the expert to adopt the methodology he considers appropriate in reaching his opinion as to the value of the husband and wife’s minority interests in the “E Group”.
It is always possible for the husband to seek clarification of expert’s opinion by way of the processes identified in r 7.24 and r 7.25 of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). It is also possible for the husband to cross-examine the expert on these matters, especially if notice is provided to the expert as to the terms of the cross‑examination in advance of the trial. I do not understand there to be any suggestion that he will be denied the opportunity to pursue those processes, and to otherwise test the expert’s opinion should he consider it appropriate.
I am further persuaded of the appropriateness of this decision having regard to the processes available to the husband over the course of these protracted and hard fought proceedings to promote instructions to the expert consistent with r 7.13(5) of the Rules. Why that has not yet been pursued is a matter for the husband and those who advise him.
For all those reasons, I make orders in accordance with paragraph 1 of Exhibit 1, being the wife’s Minute of Order sought.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 11 July 2023
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