WOODBY-CHATTERJEE & CHATTERJEE

[2017] FamCA 537

FAMILY COURT OF AUSTRALIA

WOODBY-CHATTERJEE & CHATTERJEE [2017] FamCA 537

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS –Where the wife sought orders in relation to litigation funding, spousal maintenance, appointment of a single expert and further advance of funds – Where the husband sought that the application be dismissed –Where the parties have competing applications to set aside a financial agreement – Where orders previously made for the sale of the parties former matrimonial home and where the wife received $50,000 and the remaining proceeds of sale placed into a controlled monies account – Court finds the husband is not in a financial position to pay $1,000 a week in spouse maintenance – Court finds that the appointment of a single expert is premature at this stage of the proceedings – Where paragraphs 2, 7, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22 of the orders sought by the wife are dismissed – Orders made for the husband to provide to the wife his tax returns and notices of assessment for the 2014, 2015 and 2016 years and for 2016/2017 if available – Orders made for $70,000 to be distributed to the wife and controlled by the wife's solicitor for the purpose of the final hearing on the basis that the matters are complex and the proceedings should be conducted on a level playing field.

Family Law Act 1975 (Cth), ss 79, 114(1), 114(2), 117(2), 117(2A)

Strahan & Strahan [2009] FamCAFC 166

APPLICANT: Ms Woodby-Chatterjee

RESPONDENT: Mr Chatterjee

FILE NUMBER: SYC 3822 of 2013

DATE DELIVERED: 27 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 11 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr N

SOLICITOR FOR THE APPLICANT: G & D Lawyers

COUNSEL FOR THE RESPONDENT: Ms Bridger

SOLICITOR FOR THE RESPONDENT: Bricknell Legal

Orders

1. Paragraphs 2, 7, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22 of the wife's Amended Application in a Case filed on 4 July 2017 are dismissed.

2. Within 28 days the husband will provide to the wife his tax returns and notices of assessment for the 2014, 2015 and 2016 years and also for the year 2016/2017 if those documents are available for the latter year.

3. 3.1 Within 28 days the husband and the wife will do all things and execute all documents necessary to procure payment to the wife's solicitor Mr N, from the controlled monies account operated by O Solicitors, of a sum of $70,000 pursuant to section 117(2) of the Family Law Act.

   3.2The funds of $70,000 will be controlled by the wife's solicitor and expended for the purpose of preparation of her case for hearing and conduct of 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 Woodby-Chatterjee & Chatterjee 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 SYDNEY

FILE NUMBER: SYC 3822  of 2013

Ms Woodby-Chatterjee

Applicant

And

Mr Chatterjee

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Woodby-Chatterjee and Mr Chatterjee are parties to litigation concerning, inter alia, parenting arrangements for their two children, the setting aside or enforcement of a Binding Financial Agreement and spouse maintenance.  By an Amended Application in a Case filed on 4 July 2017 the wife sought 23 orders.  At the interim hearing on 11 July 2017, she pressed for the following orders:

   2.That the mother get paid an additional amount of $25 000 from the funds currently held in the controlled monies account so as to be able to purchase a motor vehicle to replace the [4WD] she previous drove (sic).

   7.Leave be granted to the respondent's solicitor to issue up to 10 subpoenas.

   11.Within twenty eight (28) days the father is to supply the complete financial accounts/statements in relation to the following companies for the financial year 2013/14, 2014/15, 2015/2016 and 2016/2017

   [I] P/L ABN …

   [IB] P/L ABN …

   [IC] P/L …

   [ID] Pty Ltd ACN …

   [J] Pty Limited ACN ..

   [JB] Pty Ltd ACN …

   [JC] Pty Ltd ACN …

   12.That within twenty eight (28) days the father is to supply Bas statements in relation to the following companies for the last 6 quarters:

   [I] P/L ABN …

   [IB] P/L ABN …

   [IC] P/L ABN 77 …

   [ID] Pty Ltd ACN …

   [J] Pty Limited ACN …

   [JB] Pty Ltd ACN …

   [JC] Pty Ltd ACN …

   13.Within twenty eight (28) days the father is to supply the bank statements and credit card statements (if applicable) for the last 3 years for the following:

   All accounts in the name of Mr Chatterjee

   [I] P/L ABN …

   [IB] P/L ABN …

   [IC] P/L ABN …

   [ID] Pty Ltd ACN …

   [J] Pty Limited ACN …

   [JB] Pty Lid (sic) ACN …

   [JC] Pty Ltd ACN …

   14.Within twenty eight (28) days the father is to supply his tax returns and notices of assessment for the years 2013/2014, 2014/2015, 2015/2016 and 2016/2017.

   15.That within fourteen (14) days the father is to choose one of the following accounting firms and where there is no individual named that person is to be nominated by the firm.

   [P Accounting]

   [Q Accountants]

   [Mr R], [S Accountants]

   16.The parties shall jointly instruct the accountant chosen in order 15 above to seek any document and undertake any work required to review the ownership of the following companies:

   [I] P/L ABN …

   [IB] P/L ABN …

   [IC] P/L ABN …

   [ID] Pty Ltd ACN …

   to provide a report as to whether or not the father has a financial interest in any of these companies by way of shareholding or any other interest and in the event, such an interest is established to value that interest in the company/company.

   17.For the purpose of order 14 the father is to cooperate with the expert including providing access to inspect any document sought and shall within 7 days of any request made by that expert provide the information sought or the access requested.

   18.That the accountant chosen pursuant to order 14 shall be deemed to have been appointed as a Court expert in the matter pursuant to Rule 15.44 of the Family Law Rules 2004.

   19.The costs of the Court expert are to be paid equally by the parties.

   20.That the applicant husband pay to the respondent wife the sum of $1 000.00 per week as spousal maintenance paid as a lump sum of $65 000.00 being the weekly amount of $1000.00 for a period of 65 weeks.

   21.That arrears of spousal maintenance being the lump sum be paid to the respondent to cover the period from the 5 November 2016 to date with such amount calculated as the difference between what the applicant actually paid during this period and the sum of $400 he should have paid.

   22.That forthwith the husband pay to the respondent wife the sum of $105 450.00 so that she can pay her anticipated legal costs for preparation of and for their appearance on her behalf at the hearing listed in December 2017."

2. The husband sought a dismissal of the wife's Amended Application in a Case.  Each of the parties sought an order that the other pay his or her costs of and incidental to this application.  I indicate now that it is most unlikely that I will entertain any application for costs of interim proceedings in this matter before the final hearing.

Background

1. The husband was born in 1971 and is 46 years of age.  The wife was born in 1969 and is presently aged 47 years.  The parties entered into a de facto relationship in August 1999, married in 2003 and separated in August 2012.  There are two children of the marriage, E and F, who are aged 12 and 9 respectively.  The children spend either five or six nights per fortnight with the husband and the remaining time with the wife. The parties deposed to different amounts of time which the children spend with each of their parents.

2. On 28 January 2003 the parties entered into a financial agreement pursuant to section 90B of the Family Law Act 1975 (Cth) ("the Act"). Inter alia, this agreement contained the following provisions:

   41.In the event that the breakdown of the marriage occurs after 5 years from the date of marriage and either of the parties are unable to adequately to support himself or herself financially from their own income, property and resources due to:

   41.1having the care and control of a child or children of the marriage under the age of 16 years;

   OR

   41.2being mentally or physically incapacitated;

   that party shall be entitled to make a claim for spouse maintenance against the other pursuant to Part VIII of the Act.

   …

   57.This is a Financial Agreement made under s90B of the Act with respect to how in the event of the breakdown of the marriage all of the property and financial resources of both of the parties, at the time when the Agreement is made and at any later time before the dissolution of the marriage, is to be dealt with. This Financial Agreement is made in substitution for their respective rights to seek orders against the other for alteration of property interest and/or spouse maintenance under Part VIII and Part VIIIB of the Act, subject to Clause 41."

3. The husband and the wife were joint owners of the former matrimonial home at D Street, Suburb B, which was sold pursuant to orders made on 16 June 2016.  These orders provided, inter alia, that the wife receive a sum of $50,000 from the net proceeds and that the balance be lodged in a controlled monies account operated by the solicitors for the husband's father, Mr Chatterjee Snr.

4. On 10 March 2015 interim orders were made that the husband pay to the wife spouse maintenance of $100 per week.  These orders provided relevantly as follows:

   1.Pending further order the husband is to pay to the wife the sum of $100 per week as interim spouse maintenance.

   2.The court notes the parties are currently implementing an arrangement which sees the wife advanced the difference between amount paid by the husband, expressed as a weekly sum, and $400 from a loan facility which the parties have with Westpac Bank which is secured against the former matrimonial home.  Should that arrangement change so that the wife no longer receives those funds she has leave to relist the matter on 24 hours' notice to seek other orders relative to her financial support from the husband."

5. When the husband and wife purchased the Suburb B property, Mr Chatterjee Snr contributed a sum of $1.2 million to the purchase price.  The nature of this advance was determined by the Supreme Court of New South Wales in 2016, in proceedings instituted by Mr Chatterjee Snr.  The husband filed a submitting appearance and the wife defended the proceedings.

6. At first instance, the advance of $1.2 million was found by the Supreme Court to have been a gift to the husband alone.  The wife contended that the advance was a gift to the parties' jointly.  Mr Chatterjee Snr lodged an appeal and that hearing took place in 2017.  At the interim hearing, I was informed that it is anticipated that the Court of Appeal will deliver judgment in approximately four to six weeks.

7. In a letter dated 30 May 2017 (Exhibit 2) the solicitors for Mr Chatterjee Snr indicated to the wife's lawyer that, if he succeeds on appeal, he would seek from her the following amounts:

   ·costs at first instance and of the appeal in the Supreme Court proceedings of $130,000 and $70,000 respectively

   ·his costs of $15,000 in respect of the Family Court proceedings.

   This letter noted that the balance of the controlled monies account was $2,211,557 as at that date.

   The interest on the principal sum of $1.2 million has been estimated at $474,969 as at 8 June 2017 and accruing at the rate of $59.17 per day (Exhibit 7).

8. During the interim hearing I enquired of the legal representatives of the parties whether a determination of the interim issues raised by the wife should await delivery of the judgment of the Court of Appeal.  The wife refused to consent to an adjournment for that relatively short period and insisted on a determination of her interim applications.

Consideration

1. The wife sought payment of the following lump sums:

   1.        $25,000 for the purchase of a car

   2.$65,000 as lump sum spouse maintenance at the rate of $1,000 per week for 65 weeks

   3.a sum of $7,948.36 on account of "outstanding spousal maintenance previously short paid"

   4.a sum of $105,450 for litigation funding.

   The wife's Amended Application in a Case stated specifically that she sought payment of the sum of $25,000 for the purchase of a car from the controlled monies account.  Her Application in a Case did not identify this fund as the source of the other three lump sums.

2. In written submissions filed on her behalf, the wife's solicitor wrote:

   32.The payment of spousal maintenance is sought to be made from the parties share of the proceeds of sale of the former matrimonial home which was located at [D Street, Suburb B].  It is a matter for the court whether it is necessary for the court to determine whether it is to come from the fathers or the wife likely share of the property share the exact source (sic).

3. Similarly, the wife's solicitor identified the controlled monies account as the source of the proposed litigation funding payment.  He wrote in his written submissions:

   52.The payment of this amount like the payment for the spousal maintenance orders can be made from the parties' share of funds held in the controlled monies account with [O Solicitors].

4. The financial agreement operates in substitution for the Court's powers pursuant to Part VIII of the Act, subject to the exception above identified in relation to spouse maintenance. Consequently, the Court has no power to make an order for partial property settlement pursuant to section 79 unless and until the binding financial agreement is set aside after a final hearing in December 2017.

5. The wife relied upon sections 90KA(1)(c), 31, 34 and 114 of the Act as alternate sources of power for orders for lump sum payments to her from the controlled monies account. Section 90KA(1)(c) deals with the validity, enforceability and effectiveness of a financial agreement. I can see no way in which this subsection assists the wife's case for present purposes.

6. Section 31 makes provision for conferral of original jurisdiction on the Family Court of Australia. This section includes power "in respect of which matrimonial causes are instituted or continued under this Act". Section 4 defines "matrimonial cause" so as to include "proceedings with respect to a financial agreement". In my view the wife's application for payment of lump sums from the controlled monies account does not constitute "proceedings with respect to a financial agreement" and accordingly, this section provides no assistance to her case.

7. Section 34 provides as follows:

   34       Issue of certain writs etc.

   (1)The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

   It seems to me that the key phrase here is "in relation to matters in which it has jurisdiction".  Unless and until the binding financial agreement is set aside, the Court's jurisdiction is subject to very significant limitations and in my view this provision does not assist the wife's case.

8. Section 114(1) empowers the Court to grant an injunction in relation to the property of a party to the marriage. The wife does not seek an injunction in relation to the property of a party to the marriage. She asks for an order for payment to her of lump sums from the controlled monies account, which is not a form of injunctive relief.

9. Accordingly, I conclude that none of these suggested alternative heads of power assists the wife's case.  I am thus of the view that the issues for determination are as follows:

   1.        should there be an order for lump sum spouse maintenance of $65,000?

   2.should there be an order that the wife receive a sum of $7,948.36 on account of "outstanding spousal maintenance previously short paid"?

   3.should the wife receive a sum of $105,450 on account of litigation funding?

   4.should there be an order that the husband provide financial disclosure in respect of seven specified companies and himself?

   5.should there be an order for a forensic accountant to prepare a single expert report, at the joint cost of the parties?

Spouse maintenance

1. As a threshold issue, the wife must satisfy the Court that she is unable to support herself adequately within the meaning of section 72 of the Act. She deposed that her weekly income is $708, which consists almost entirely of Centrelink payments. In her Financial Statement of 24 March 2017 the wife deposed a total weekly expenditure of $3,000. This figure includes amounts which are not currently being paid by her, for example, entertainment of $120 per week and holidays of $120 per week.

2. The wife has the care of the parties' children for eight or nine days per fortnight and they spend the balance of their time with the husband.  No doubt this responsibility limits her opportunity to engage in paid work.  On the other hand, the wife gave no evidence of any attempts whatsoever to find gainful employment.

3. A significant portion of the wife's time is devoted to the care of the parties' children. Consequently, her capacity to engage in appropriate gainful employment must be compromised to some extent.  On balance, I find that the wife is unable to support herself adequately by reason of her responsibility to care for the parties' two children.  The next issue is the capacity of the husband to contribute to the financial support of the wife.

4. In his Financial Statement of 26 May 2017 the husband deposed to a total weekly income of $1,849 and expenditure of $2,348. Non-discretionary amounts of rental of $750, income tax of $436, child support of $169 and interim spouse maintenance of $100 account for a total of $1,455 of his total weekly expenditure of $2,348.  Even on this preliminary examination of the husband's financial position, therefore, he is unable to pay interim spouse maintenance of $1,000 per week.

5. The wife's application for spouse maintenance becomes more problematic when cast in the form of a lump sum order.  No basis was suggested for an order of 65 weeks' duration.  Additionally, it is well settled that considerable care should be taken with orders for lump sum maintenance because the financial circumstances of either or both parties may change due to the vicissitudes of life.  For these reasons, I will dismiss the wife's application for lump sum spouse maintenance.

6. In relation to the lump sum of $7,948.36 the wife deposed as follows:

   216.As a result I made an application to the court for spousal maintenance in January 2015.  Justice Le Poer Trench considered this matter and on the 9 March 2015 he made an order being order 1 which read "Pending further order the husband is to pay to the wife the sum of $100 per week as interim spouse maintenance.  He went on in order 2 to note an arrangement that the father will advance the difference between his child support obligation and the sum of $400 with that money to be paid from the [T] account.

   217.Up until the 29 October 2015 [Mr Chatterjee] made payments of $208.00 being the child support assessment amount plus another payment of $192.00 being the difference between $208.00 and the required amount of $400.00.  As well he paid $100 as spousal maintenance.

   218.On the 5 November 2015 I received just the CS amount of $208.00 plus the spousal maintenance of $100.00.  I had my solicitor raise the matter with [Mr Chatterjee’s] lawyer who wrote back in an email on the 13 November 2015 and advised that the "correct situation is that our client continues to make the weekly payment of $100 as ordered by the court, together with the child support payment of $208 per week.  An additional amount of $191 was paid to your client from the [T] account.  We understand that amount is no longer being paid to your client.  As has been raised with your client on numerous occasions in recent times (including the recent hearing before Justice Rees), the funds available from the [T] account are diminishing and will soon run out."  Annexed hereto and marked BH is a copy of the email thread on this issue.

   219.On the 15 November 2015 I had my solicitor write to the court to seek to relist the matter pursuant to order 2  Annexed hereto and marked BI is a copy of that letter.  I understand my solicitor followed this up with an email to the Sydney case coordinator on the 4 December 2015 with the response that the enquiry has been forward (sic) to the chambers of Justice Le Poer Trench.  Chambers will respond in due course."  As I understand things my solicitor never heard back as other matters took over this was overlooked.

   220.I seek that [Mr Chatterjee] be ordered to pay me the additional amount owed pursuant to this order for the period from the 5 November 2015 to date.  I calculate this to be as follows

   5 November 2015 to 9 September 2016 –

   44 weeks x $91.19 ($00 – ($208.82 + $100.00)) = $4 012.36

   Plus 9 September 2016 to 23 March 2017 –

   28 weeks x $131.20 ($400 – ($168.80 + $100.00 = $3 673.60

   Total owing   $7 685.96

1. It thus appears that the wife took no step to rectify this situation after November 2015, other to include this issue in her Amended Application in a Case.  In my view this situation is comparable to that of a litigant who allows arrears of maintenance to accrue, while taking no action, and then seeks payment of a lump sum from the other party.  I will dismiss this aspect of the wife's application.

Interim costs or litigation funding

1. The wife brought her application for litigation funding pursuant to section 117(2) of the Act.

2. This provision falls outside Part VIII, hence the court has jurisdiction to deal with this application.

3. Section 117(2A) sets out various considerations to which the Court must have regard in determining whether to make an order for costs.  This section provides as follows:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)  the financial circumstances of each of the parties to the proceedings;

   (b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)  such other matters as the court considers relevant."

4. I have referred above to the respective financial positions of each of the parties.  I accept the submission on behalf of the wife that she will be unrepresented at trial, without the benefit of an order for litigation funding.  Neither party is in receipt of a grant of legal aid.

5. In my view, there has been no conduct on the part of either party which would be relevant for present purposes.  Neither party has failed to comply with previous orders of the Court, in a sense relevant to this application.  Neither party has been wholly unsuccessful in proceedings.  There was no evidence of any written offers of settlement.

6. In Strahan & Strahan [2009] FamCAFC 166 at [96], the Full Court said as follows:

   96.      In Paris King Investments Brereton J at [30] and [31] said that in addition to the three matters described in Zschokke, where the order was made pursuant to either s 74 or s 117 of the Act:

   ·an applicant should have "at least an arguable case for substantive relief which deserves to be heard":  Chester v Chester (1995)
   FLC 92-612 ("Chester") at 82,107 per Moss J;

   ·there should be evidence of the applicant's "likely costs of the litigation":  see Wilson and Chester;

   ·"it is not an essential precondition" that the applicant's legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis:  Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987);  see however Coomes and Coomes [1995] FamCA 103; (1995)
   FLC 92-558 per Cohen J;

   ·an order may "make a provision for litigation expenses at a rate that appears reasonable in all the circumstances";

   ·an order can be made "in respect of costs already incurred as well as of future costs";

   ·"whether the order is to be in respect of costs already incurred or costs to be incurred, and whether the applicant's lawyers will continue to act in the absence of provision for costs to be incurred, may be relevant to the discretion to make an order, and its' quantum";

   ·"any such order should be framed to protect the parties from any risk of injustice arising from the manner in which the funds are expended" and this may be done "by requiring that the funds be administered solely by the applicant's solicitors and applied only to meet the expenses referred to in the order, with detailed records being maintained to permit review by the Court at the time of the exercise of its discretion in the substantive property proceedings or on the final determination of the issue of costs":  Breen.

   We observe that Brereton J at [33] also said that "many of the foregoing considerations [he described] are less important, though not necessarily irrelevant, where what is relied on as a source of power" is an interim property order under s 79 and s 80(1)(h).

7. In a 2015 judgment in these proceedings, the Court concluded that the wife has "an arguable case" for setting aside the binding financial agreement.  I have no reason to conclude otherwise and, in fact, no submission was put on behalf of the husband to the contrary.

8. In a letter dated 23 June 2017 (annexure "A" to the wife's affidavit of 4 July 2017) the wife's solicitor advised her that a sum of $105,450 will be required to prepare the proceedings for trial and to complete a ten day hearing.  Notably, that figure includes sums of $10,000 for the wife's share of an expert report from a forensic accountant and $1,250 for the issue and service of ten subpoenas.  In the same letter, the wife's solicitor advised her that he is not prepared to undertake any further work without payment.  This letter indicated that the wife has not yet paid any fees to her lawyer.

9. In my view, a significant consideration with respect to this application is the protection of the interests of Mr Chatterjee Snr.  As outlined above, if he is successful in the Court of Appeal he will be entitled to an amount in the order of $1,880,000.  This approximate figure includes the capital sum of $1.2 million, plus interest and costs.  The current balance of the controlled monies account is $2,211,577, thus the balance available for distribution between the parties would be approximately $330,000 on that scenario.  This figure is necessarily inexact because interest is accruing on the principal sum of $1.2 million at the rate of $59 per day.

10. The wife deposed in her affidavit of 8 June 2017 that Mr Chatterjee Snr's lawyers handed her solicitor a document headed "Chatterjee proceeds of sale" at the appeal hearing on 5 June 2017.  That document read, inter alia, "[Ms Woodby-Chatterjee's] entitlement of 12.5% of net proceeds for entitlement $281,258.66."

11. The binding financial agreement would appear to provide for an equal division between the parties of the balance of the sale proceeds of the Suburb B property, after payment to Mr Chatterjee Snr.  If he is to receive the sum of approximately $1,880,000, the wife would be entitled to an amount of about $165,000.  She received a sum of $50,000 pursuant to the orders made on 16 June 2016.

12. In the exercise of my discretion, I am prepared to order that the wife receive a sum of $70,000 from the controlled monies account for the purpose of funding her litigation.  These proceedings are complex and, in my view, steps should be taken to ensure that the husband and wife conduct the trial on a level playing field.  I consider that such an order would not operate to the detriment of the interests of Mr Chatterjee Snr.  I will make orders, as contemplated by the Full Court in Strahan, which place these funds in the control of the wife's solicitor and are available for the purpose of funding her litigation.

Financial disclosure

1. In an affidavit sworn on 21 July 2015, the husband provided various information concerning the companies known as I Pty Ltd, IC Pty Ltd and IB Ltd.  He deposed that he holds one D-Class share in the company I Pty Ltd and his counsel stated on 11 July 2017 that he is a director of that company.  The husband deposed further that he is a director of the other companies listed above but not a shareholder.  The husband annexed to this affidavit a bundle of correspondence between the parties' solicitors in relation to his shareholdings.

2. The state of the evidence does not make easy the exercise of identification of the nature, if any, of the husband's interest in the companies named in the wife's Amended Application in a Case.  I am not prepared to make the orders sought unless and until there is clarification of that issue.  The wife may wish to bear in mind her right to ask specific questions of the husband pursuant to Part XIII of the Rules.  Clarification of the nature of the husband's interest in these entities is also relevant to the issue of subpoenas.  I am not prepared to make the orders as sought on the present state of the evidence.

3. I see no reason why the husband should not provide his tax returns to the wife.  These documents could be relevant to the issue of spouse maintenance.  I will make an order in accordance with paragraph 14 of the wife's Amended Application in a Case filed on 4 July 2017.

Single expert report

1. The wife sought the appointment of a single expert to consider the issue "as to whether or not the father has a financial interest in any of these companies by way of shareholding or any other interest and in the event, such an interest is established to value that interest in the company/company (sic)."  In her affidavit of 24 March 2017 the wife deposed that she requires the forensic accountant to report on the husband's income and other benefits which are allegedly available to him from various companies.

2. In my view, such an order would be premature at this stage and thus an unnecessary expense to the parties.  The provisions of the binding financial agreement are operative unless and until it is set aside by order of the Court.  I was not informed how such expert evidence would be relevant to the determination of that issue.  I will dismiss this part of the wife's application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 27 July 2017.

Associate: 

Date:  27 July 2017