Pachi & Jez [2025] FedCFamC1F 253 (16 April 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.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Pachi & Jez has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an interim application for procedural orders relating to discovery and expert evidence.
2. The applicant is Ms Jez ("the wife"). The first respondent is Mr Pachi ("the husband"). The second respondent is Ms Alberici ("the husband's wife").
3. The proceedings relate to property adjustment at the conclusion of the relationship between the husband and wife.
4. In order to hear and determine the property adjustment application it is necessary to have evidence about the value of various shareholdings in the name of the husband and previously in the name of the husband.
5. The single expert Ms B is providing an expert opinion as to the value of the following entities:

(a) C 1 Pty Ltd;

(b) C 2 Pty Ltd;

(c) C 3 Pty Ltd;

(d) D Pty Ltd;

(e) E Pty Ltd;

(f) F 1 Pty Ltd.

1. Within 21 days the first and second respondents are to serve copies of the documents listed in the single expert [Ms B's] email to the parties dated 5 February 2024 (which are in his or her possession or control) and compile a list of all documents so served.

2. The first respondent is to provide information sought by the single expert [Ms B] in her email to the parties dated 5 February 2024 within 21 days.

3. The second respondent is to provide information to the single expert [Ms B] as requested in her email to the parties dated 5 February 2024 to the extent that it is within her personal knowledge within 21 days...

8. Within 21 days the first and second respondents are to provide to the applicant's solicitors copies of bank statements for the following companies:

a. [C 2 Pty Ltd] from February 2013 to the present day;

b. [C 1 Pty Ltd] from September 2012 to the present day;

c. [C 3 Pty Ltd] from November 2015 to the present day; and d.

d. [F 1 Pty Ltd] from August 2019 to the present day.

9. Within 21 days the first respondent shall provide to the applicant's solicitors copies of bank statements for the following companies:

a. [D Pty Ltd] from December 2015 to the present day;

b. [E Pty Ltd] from June 2013 to the present day;

c. [G Pty Ltd] from February 2008 to the present day;

d. [F 2 Pty Ltd] from July 2013 to September 2014;

e. [H Pty Ltd] from July 2019 to the present day;

f. [J 1 Pty Ltd] from December 2013 to the present day;

g. [C 4 Pty Ltd] from February 2016 to the present day; and

h. [Pachi Pty Ltd] from October 2013 to the present day.

1. By my calculation those orders should have been complied with on or before 24 December 2024.
2. It is uncontroversial that the orders had not been complied with on 24 December 2024.
3. On 15 January 2025, an application was filed which sought to enforce compliance with those orders.
4. On 23 January 2025 I made an order listing the application and directing service before 31 January 2025.
5. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("the Rules") provide that a response to an application must be filed within 28 days: Rule 2.18(2).
6. Assuming compliance with my order, then a response ought to have been filed on or before 28 February 2025.
7. No Response has been filed by either the first or second respondent in compliance with the Rules or my Order.
8. I am at a loss as to how to remedy the situation in this case since the delay occasioned by the respondents' failure to comply is chronic.
9. A Case Outline was filed by the applicant - from that document it appears as though the applicant contends that the first respondent remains in breach of orders 8 and 9 and the second respondent also.
10. It is not suggested that there has been no compliance with the orders, just partial compliance.
11. On 15 April 2025 at 5:45pm the first respondent filed an affidavit. That affidavit contains no explanation for the failure to comply with the orders of 3 December 2024. That affidavit provides no explanation for the failure to file a Response and affidavit as ordered or in accordance with the Rules.
12. There is no Response from the first respondent.
13. On 15 April 2025 at 10:30pm the second respondent filed a Response and affidavit.
14. To the extent that the respondents have filed documents in response to the application the Rules provide that they were filed on the day the matter was to be heard and determined.
15. Rule 5.07 says:

Each affidavit in support of or in opposition to an interlocutory application must be filed and served at least 2 business days before the date fixed for the hearing.

1. The applicant contends that there are effectively two outstanding issues:

(a) The completeness of disclosure; and

(b) The second respondent's payment of the expert fees.

1. The requirement that a party make full and frank financial disclosure is set out in the Rules. Rule 6.01 provides:

(1) Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.

(2) The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised.

(3) The duty of disclosure also applies to a litigation guardian appointed under Part 3.5.

(4) This rule does not apply to a respondent to an application alleging contravention or contempt.

1. The duty to disclose relevant documents is specifically provided for in Rule 6.03 as follows:

The duty of disclosure applies to each document that:

(a) is or has been in the possession, or under the control, of the party disclosing the document; and

(b) is relevant to an issue in the proceeding.

1. There are specific documents identified in Rule 6.06.
2. Finally, Rule 6.17 sets out consequences of non-disclosure:

If a party does not disclose a document as required by these Rules:

(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party's consent or the court's permission; and

(ii) may be guilty of contempt for not disclosing the document; and

(iii) may be ordered to pay costs; and

(b) the court may stay or dismiss all or part of the party's case.

1. In addition to the Rules of Court, the case law has identified guiding principles which may have application to cases where the Court finds that a party has failed to disclose relevant information or documents (or both): Weir & Weir [1992] FamCA 69; (1993) FLC 92-338, Chang & Su (2002) FLC 93-117_, Black & Kellner_ [1992] FamCA 2; (1992) FLC 92-287.
2. In the Marriage of Briese [1985] FamCA 23; (1985) 10 Fam LR 642 Smithers J held that:

It is fundamental to the whole operation of the Family Law Act in financial cases that each party must make a full and frank disclosure of all material facts.

1. The respondents required leave to read and rely on their material. No significant opposition was taken by the applicant who also wished to file and rely on a tender bundle (Exhibit A).
2. The parties should not assume that leave will be granted nor assume that a failure to comply with orders or the Rules will not have consequences. Here leave is granted but I will return to the issue when I consider the applicant's costs application.
3. The applicant provided two concrete examples of a significant gap in the provision of bank statements. This is sufficient in my view to warrant the first respondent providing an index of discovered documents and a paginated bundle. The respondents agree that the exercise has utility.
4. It may be that the respondents have possession and control of the documents which are said to be missing, in which case they can be provided.
5. Once the first respondent and second respondent are confident that all required documents in their possessional or control have been provided then it is appropriate that they file an undertaking as to disclosure.
6. Following the filing of the undertaking as to disclosure, it may well be that further discovery needs to take place via subpoena.
7. The first respondent's lawyers say (and I accept) that they are only able to access the past seven years of bank statements. The applicant cannot reasonably require more. However, the applicant contends that there are gaps in the provision of statements for the last seven years.
8. In the Outline of Case document filed on behalf of the applicant, the applicant includes a table for the format in which the documents ought to be listed. I set out that table here:

1. It is appropriate in the circumstances that discovery take place in a formal and structured manner to permit all the parties to the proceedings to determine which documents have been discovered and which may be outstanding.
2. I have been taken to correspondence which indicates that the first respondent has no knowledge of an entity J 2 Pty Ltd. The applicant accepts that the first respondent has no knowledge of this entity and accordingly I will make orders to relieve the first respondent of the requirement to provide documents in respect of that entity.
3. The single expert engaged in the matter has made requests of the parties for provision of documents and information. The single expert's requests were the subject of the December orders and the subject of this application. There has been substantial compliance now with the single expert's request. It is important in this case that the single expert have access to all documents and information necessary to complete her report. Accordingly, I raised with the parties the appropriateness of the single expert being permitted to seek orders from the Court and the parties agreed that this is suitable. It would appear that if the single expert is provided with the documentation and information then the report may well be available in the middle of the year. Accordingly, I propose to list the matter for further Case Management after it is suggested that the report will be available.

1. Costs are dealt with in section 117 of the Family Law Act 1975 (Cth). Section 117(2A) provides for the circumstances in which the Court may exercise its discretion to depart from the usual rule that each party pay his or her own costs.
2. Those justifying circumstances are set out as considerations in sub-section (2A).
3. Here it is significant that the respondents did not comply with orders of the Court.
4. It is significant that, as a consequence of the respondents' failure to comply with the orders of the Court, the applicant properly relisted the matter.
5. That is sufficient justifying circumstances to depart from the usual rule.
6. The first respondent indicated that today's hearing was rendered unnecessary by the correspondence dated 16 January 2025 which asserted that the first respondent had complied.
7. In circumstances where I am unable to evaluate whether or not the assertions contained in that correspondence are accurate, I cannot place too much weight on the assertion of compliance contained in that letter. The underlying facts, namely that neither respondent complied with the orders and then failed to comply with any of the provisions of the rules to answer the application and failed to comply with my orders to answer the application, all tend to the conclusion that there are sufficient justifying circumstances to depart from the usual rule.
8. The first and second respondent should pay the applicant's costs of and incidental to this application on a party/party basis as agreed or as assessed.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie.