FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
[2]
The matter is fixed for a final property hearing commencing at 10:00 am on 10 November 2025 (add date) via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth) and to continue, if necessary, onto the .
11, 12 and 13 November 2025
The expert Mr B is directed to file an affidavit within fourteen (14) days identifying his opinion as to the appropriate multiplier to be applied to the EBITDA with respect of the three companies and that no other opinion as to the EDITDA or other valuation steps are required.
The earlier directions in respect of a valuation report by Mr B or any other steps to be taken by Mr B in respect of those three companies are discharged.
The respondent is directed to pay, in the first instance, the costs of Mr B to date and in completion with the above orders, and 50% of those costs will be reimbursed to the respondent by the applicant upon final resolution of the matter and addressed in the final property orders to be made by the Court.
Leave is granted to each party to file and serve any proposed affidavit evidence from an expert in respect of a valuation of the two companies on or before 27 June 2025.
The applicant is directed to file and serve a consolidated trial affidavit together with any affidavit evidence the applicant wishes to rely on or before 29 August 2025.
The respondent is directed to file and serve a consolidated trial affidavit together with any affidavit evidence the respondent wishes to rely on or before 29 September 2025.
The parties are directed to file and serve a joint balance sheet on or before 10 October 2025.
The applicant is directed to file and serve a case outline including a chronology and a list of objections on or before 17 October 2025.
The respondent is directed to file and serve a case outline including a chronology and a list of objections on or before 24 October 2025.
The parties are directed to file and serve any tender bundle (7) days prior to the hearing.
Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
[3]
Note: The form of the order is subject to the entry in the Court's records.
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.
[6]
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
[7]
The Court was informed that in respect of the two companies owned by or being the subject of an interest by the respondent husband ("the husband") that an expert, Mr B, had been appointed to value the companies. The Court was also informed, that Mr B, sometime last year, wanted to try and verify the financial records for the purpose of expressing a reliable expert opinion in respect of the valuation of the companies. The companies are of a kind in respect of which the valuation turns on the relevant multiplier to be applied to the EBITDA.
The EBITDA is readily able to be identified from the financial records of the company. Whether there is sought to be some undermining of those financial records by reference to books of account in respect of the flow of funds between the companies or in relation to borrowing by directors is a matter that can be readily identified from those financial records.
The Court is concerned that the ability of the parties to resolve the matter is likely to be protracted unless orders are made varying the earlier orders for valuation and simplifying the task to be undertaken by Mr B to identify the applicable multiplier to be applied to the EBITDA. The Court has not required Mr B to work out what that EBITDA is. It will be apparent from the financial records and to the extent that either party wants to challenge or contend that it is some other figure, they, no doubt, can do so. The Court has also provided an opportunity for the parties, if they wish, to put on their own valuation evidence in respect of those two companies.
The Court was informed the applicant wife's ("the wife") company has been identified as having zero valuation and does not require any valuation. The Court is conscious of the fact that the Court was informed that further tens of thousands of dollars would be payable to Mr B to complete his valuation task. In circumstances where the two companies are ones of a kind where the relevant issue is the multiplier to be applied to the EBITDA, the Court sees no utility in encouraging the parties to continue to incur significant costs of a kind that would only be appropriate if one was undertaking an auditing function. It was not appropriate to order the expert to undertake functions of a kind undertaken by an auditor.
It is for these reasons that the Court took the view that the best way to assist the parties, taking into account the principles identified in section 95 of the Family Law Act 1975 (Cth), was to advance the matter with the least possible expense to the parties by making orders of the kind the Court identified.
It is for these reasons the Court makes the orders varying the existing consent orders in respect of the valuer to confine the task being undertaken to accelerate the provision of the relevant information to assist the parties to usefully explore their agreed opportunity that they are pursuing in respect of mediation to try and achieve a consensual outcome
For these reasons, the Court makes the above orders.
[8]
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Street.
Legislation Cited (3)
Circuit and Family Court of Australia (Family Law) Rules 2021