Verber & Verber [2025] FedCFamC1F 329 (8 May 2025)

ON THE APPLICATION IN A PROCEEDING FILED ON 28 FEBRUARY 2025, THE COURT ORDERS THAT:

1. The applicant be granted access to the following documents in the proceedings with the file numbers BRC7462/2024 and BRC10651/2021:

(a) affidavits filed by or on behalf of the respondent;

(b) any responses filed by or on behalf of the respondent;

(c) all court orders and judgments.

1. The applicant be permitted to use the documents referred to in order 1 hereof in the proceedings BRC5254/2024.
2. The respondent be released from his implied Harman undertaking in relation to the documents to the extent that is necessary to enable him to use the documents in the proceedings BRC5254/2024.
3. The balance of the Application in a Proceedings filed on 28 February 2025 is otherwise dismissed.

ON THE ORAL APPLICATION OF NON-PARTY RESPONDENT MR B VERBER THE NON-PARTY RESPONDENT D GROUP HOLDINGS FAMILY PTY LTD FOR A STAY OF ORDERS 1 AND 2 HEREOF PENDING APPEAL, THE COURT ORDERS THAT:

1. The non-party respondent Mr B Verber and the non-party respondent D Group Holdings Family Pty Ltd have leave to make an oral application for a stay of orders 1 and 2 hereof pending appeal.
2. The operation of orders 1 and 2 hereof be stayed until 4.00pm on 16 May 2025.
3. In the event a Notice of Appeal is filed and served upon each other party to the appeal before 4.00pm on 16 May 2025, the stay shall, without further order, be extended to 4.00 pm on 27 May 2025.
4. The stay application stay be listed to 9.30am on 27 May 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane for further consideration.

ON THE APPLICATION IN A PROCEEDING FILED ON 13 MARCH 2025, THE COURT FURTHER ORDERS THAT:

1. By no later than 4.00pm on 16 May 2025 the applicant send to the respondent a list identifying to the best of her information and ability, the entities she contends requires valuation in the application.
2. By no later than 4.00pm on 23 May 2025 the respondent shall respond setting out:

(a) the identity of each entity he agrees requires valuation;

(b) to the best of his information and ability, the identity of any other entities he contends require valuation in the proceedings; and

(c) proposing the details of the process to effect such valuations.

1. By no later than 4.00pm on 26 May 2025 the solicitors for the applicant shall file a short affidavit that annexes the correspondence exchanged between the parties pursuant to orders 9 and 10 hereof and any other correspondence bearing on the issue of valuation.
2. The applicant's costs of the Application in a Proceeding are reserved to the trial judge.
3. Subject to the usual objections, the parties are granted leave to issue any subpoena as they consider necessary and appropriate in the proceedings.
4. The Application in a Proceeding filed on 13 March 2025 is otherwise dismissed.

1. The hearing dates for the period 22 to 26 September 2025 are vacated.
2. The application for parenting orders only is listed for hearing (with an estimated hearing time of five (5) days) at 10.00am on 29 September 2025 in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
3. The applicant file and serve on each other party no later than 4:00pm on 8 September 2025:

(a) one (1) consolidated affidavit, prepared in accordance with rules 8.15, 8.16 and 8.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 setting out all evidence in chief given by her; and

(b) one (1) consolidated affidavit, prepared in accordance with rules 8.15, 8.16 and 8.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 of each witness intended to be relied upon at trial by the applicant setting out all evidence in chief of that witness.

1. The respondent file and serve on each other party in reply no later than 4:00pm on 19 September 2025:

(a) one (1) consolidated affidavit, prepared in accordance with rules 8.15, 8.16 and 8.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 setting out all evidence in chief given by him; and

(b) one (1) consolidated affidavit, prepared in accordance with rules 8.15, 8.16 and 8.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 of each witness intended to be relied upon at trial by the respondent setting out all evidence in chief of that witness.

1. Each party file and serve on each other party no later than 4:00pm on 22 September 2025, a case outline setting out:

(a) a precise minute of the final orders sought;

(b) a relevant chronology;

(c) a list of affidavits intended to be relied upon at trial; and

(d) a list of the issues arising in the application (both factual and legal) by reference to s 60CC of the Family Law Act 1975 (Cth) and for each issue so identified a reference to the evidence (in each affidavit relied upon by that party) upon which that party intends to rely in respect of that issue.

1. No party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
2. In the event that either party wishes to cross-examine any author of a report prepared pursuant to s 62G(2) of the Family Law Act 1975 (Cth) at the final hearing, that party shall provide written notice to the report writer of such intention no later than fourteen (14) days prior to the commencement of the hearing.
3. In the event that no such notice is given to the report writer in accordance with the previous order and the report writer is otherwise unavailable, the report authored by that person will be admitted into evidence without cross examination unless the trial judge otherwise orders.
4. To the extent these orders are inconsistent with the Central Practice Direction, these orders shall prevail.

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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth

1. There are two applications with which I have to deal. I will deal with the first application concerning discovery or disclosure filed on 13 March 2025.
2. In that application, the applicant seeks a range of orders which are directed to requiring the respondent to produce a broad range of documents relating to a broad range of legal entities. In this property adjustment cause, the wife, who is the applicant, says that the respondent's claim that there is no property to divide between the parties is false and that there is significant property which the respondent is able to access and which has been - and this is my word, not hers - secreted away in the web of companies and trusts that she says exists at his behest and the behest of his family.
3. So, she says the case is complex in that identification of the asset pool and, perhaps, valuation of it is difficult without significant amounts of disclosure from the respondent. The very fact that the orders that she now seeks run to many, many pages is testament to the complexity that she says exists in the case. Her material demonstrates that there have been ongoing requests for disclosure from the respondent for some time now and, in my view, having regard to the correspondence that is exhibited to her affidavit in support of this application, the respondent's attitude towards disclosure has been entirely appropriate. He, through his lawyers, have responded to the requests from time to time, have produced documents and, when not able to do so, have provided a reason for that. The applicant, however, does not seem to be satisfied by his responses.
4. In this application, an amended minute of proposed orders was handed to me when the application was argued. It differs from the orders sought in the filed application in a proceeding and the amendments take into account the respondent's responses to various requests for disclosure that he has summarised in Annexure A to his affidavit in response filed on 19 March 2025. It, too, is an extensive document but, ultimately, the issues are relatively straightforward. In respect of each of these companies, trusts and other entities that the applicant has identified the respondent has an interest in, had an interest in, or might possibly have an interest in, the respondent says:

I have produced what I have. I have no access to any other documents and to the extent that I might have the ability to seek inspection and production of those documents through section 198F of the Corporations Act 2001, I have made requests to the companies to permit me access to those documents. Further, to the extent that I might have an interest in or be said to have an interest in trusts, irrespective of the nature of the trust, by reason of being within the class of beneficiaries in a particular trust, I have asked the trustees to produce to me the documents sought from me by the applicant.

1. In all cases, it seems, those requests have gone unanswered. The respondent's requests do not cover all of the documents that are sought in this application from all of the entities, but that is only because of a timing issue. The applicant, as these proceedings have gone on, updates her request for disclosure so that documents are to be provided between or from a particular starting point to the date of the order or some other time extant when the application is before the Court. The respondent, it seems to me, cannot be expected to keep up with those types of requests when the finish line keeps changing. So, insofar as most of the documents the subject of the application are concerned, I am satisfied that the respondent has done what he can do to secure the documents for provision to the applicant, save for one thing.
2. That one thing is to issue a subpoena directed to the relevant entities for production of the relevant documents and, ultimately, that is what this application boils down to: a competition between the applicant and the respondent about who is going to issue subpoenas to all of these organisations. The applicant says it should not be her because it is the respondent's obligation to produce these documents and that I should consider rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in this regard. But ultimately, if the basis of a direction to the respondent to issue a subpoena is the proposition that because he can issue a subpoena to enforce production of these documents, they are therefore within his power, possession or control, the same may be said about the applicant. While she does not have a primary obligation, of course, to produce these documents under rule 6.06, she nonetheless has the power to compel their production through her own subpoena.
3. In the course of submissions, I was taken to a decision of Knox & Knox [2024] FedCFamC1F 708, a decision of a single judge of this Court on facts not dissimilar to the present. There are some differences but, for present purposes, I am prepared to assume that the facts are analogous to this case. There, the wife was the beneficiary of some trusts, described in the judgment as the B Trust and the E Trust. Insofar as the B Trust was concerned, there was no dispute between the parties that she had an interest that might be amenable to a property adjustment order. It was not so clear in respect of the E Trust but on both accounts, she was unable to produce relevant documents in relation to the trusts.
4. In the course of the judgment, the judge pointed out that it was within the power of both parties to issue subpoenas for production of the relevant documents. He pointed out that whilst the primary obligation was on the wife to produce some of these documents, particularly in relation to the E Trust, (and he was not enamoured of her arguments about why she could not produce those documents) he nonetheless accepted, it seems to me, not expressly but at least implicitly, that it was within the power of both parties to compel the production of the relevant documents through subpoena.
5. What he did not do was to order that either party issue a particular subpoena to a particular party. What he did do was to grant to the wife leave to issue a subpoena in respect of the E Trust, and he granted the husband leave to issue a subpoena in respect of the B Trust.
6. So to the extent that the submissions that were made to me were suggestive of the proposition that I should direct the respondent to issue a subpoena to all of these companies for the production of the relevant documents because, ultimately, it was his responsibility to produce them, the ratio, if there be one from Knox & Knox, seems to be against that proposition because it was not the wife in that case who received leave to issue the subpoena to produce or to secure production of the B Trust documents but the husband.
7. Anyway, the long and the short of it is, I am not going to order that the respondent subpoena any of these entities. I do not intend to make any orders in the application for disclosure. I intend to dismiss the application.
8. It was said in the course of submissions that, really, the orders that are proposed and, in particular, orders 3, 4 and 5 were the respondent's last chance to make proper disclosure in this case. The evidence shows that as far as I can tell, he has taken his disclosure obligations seriously, and he has responded when a response has been called for. That his response might not be to the applicant's liking or those that advise her is hardly to the point. The applicant is free to issue subpoena to whomever she wishes, and the only order that will be made on the application is that both parties have leave to issue an unlimited number of subpoenas.
9. I turn then to the second application that is before me. That application concerns access to Court files. A person with a proper interest in information obtainable from the Court record in particular proceedings may be permitted by the Court to search and inspect and copy a document forming part of that Court record: see rule 15.13 of the Federal Circuit and Family Court of Australia Rules (Family Law) 2021 (Cth). It is for the applicant for such an order to establish that they have a proper interest in information obtainable from that particular court record. Once that happens, the Court has a discretion to grant access (Oates & Q [2010] FamCAFC 202).
10. Here, the applicant for such an order is the applicant wife in the property adjustment cause that is pending in this court. The first respondent to this application is the respondent husband to that cause. There are other respondents and although notice of this application was given to all of the parties to the proceedings in respect of which access to the files is now sought, only three parties have actively responded to this application. They are the respondent in the principal proceedings before me, Mr Verber; Mr Verber's father, Mr C Verber, who was a party to the proceedings, the court file for which the applicant now seeks to access; and Mr Verber's brother, Mr B Verber, and a company associated with him, D Group Holdings Family Proprietary Limited. Each of those respondents opposes the order sought by the applicant.
11. The order sought is that the applicant be provided with access to all affidavits and any financial statements sworn by Mr Verber and filed by him, any responses filed by or on behalf of him, and all Court orders and judgments in two files, one bearing file number BRC7462/2024 and the other bearing file number BRC10651/2021. The latter file number relates to a property adjustment case that was pending in this Court between Mr Verber's mother and father; the second file number relates to costs proceedings that arose out of that property adjustment case.
12. The applicant before me seeks an additional order that both she and the respondent in the principal application be permitted to use the documents she inspects in these proceedings, and she seeks an order that the respondent be released from his implied Harman undertaking in relation to the documents to the extent necessary to enable him to use the documents here.
13. It was submitted on behalf of Mr B Verber, and his submissions were taken up by Mr C Verber and echoed by Mr Verber, that the applicant does not have a proper interest in the main proceedings or the cost proceedings because she was a party to neither. I accept that argument. She does not have a proper interest in the proceedings. But what she does have is a proper interest in information obtainable from the Court record in those proceedings, something that is well within the rule. Counsel for Mr Verber conceded, upon direct inquiry from me, that she indeed was a proper person for that purpose. There was no such concession from the other respondents. But I am satisfied that she is.
14. Her proper interest arises in this way: she says that in the other proceedings between Mr Verber's mother and father, Mr Verber was a party, and he took various positions. So, too, did Mr C Verber's father. She says that the position he took there is now inconsistent with the position he takes in these proceedings, both as to the ownership or access to assets and the payment of legal costs. Put as simply as I can put it, her desire to search those Court files for Mr Verber's sworn statements is no doubt an effort to establish prior inconsistent statements from him that might be of use to her in these proceedings. That is to say, the purpose for which she wishes to search the Court file is to establish if there are any and then, if there are, to be able to prove those prior inconsistent statements. That is a perfectly reasonable and legitimate forensic purpose.
15. To the extent that it might be said that it is fishing, the inspection of Court files and the like is not the same as seeking the production of or inspection of a document on subpoena. Paragraph 83 of the Full Court's judgment in Oates & Q they say this:

There is no prohibition placed on so-called "fishing" by the terms of r 24.13. If the Court determines that a person has the requisite proper interest, it is within the discretion of the Court to grant access to the entire Court ... file.

1. So, to the extent that it might be said that the applicant's application in a proceeding should be refused because it is fishing, the argument is unmeritorious.
2. Perhaps the most significant opposition to inspection arises from the circumstances in which the trial between Mr Verber's mother and father came to an end and the consequent cost application. The cost application has been determined by orders and reasons. The reasons appear in Venter & Venter (No 2) [2024] FedCFamC1F 862. From those reasons and those in Venter & Venter (No 6) [2024] FedCFamC1F 94 it appears that as part of her preparation of the documents in her case, including her evidence, Mr Verber's mother had access to material which was subject to, or could have been subject to, valid claims for legal professional privilege. The judge in those cases took the view that Mr Verber's mother's access to that material and the access that her lawyers had to that material infected the process so much that the lawyers involved ought to pay costs of various applications and Court events.
3. The position is best summarised, I think, by senior counsel who appeared for Mr B Verber in his written submissions. Those submissions point out that after receipt of and consideration of the relevant privileged material, but before she told anybody that she had them, Mr Verber's mother, filed an amended initiating application and her trial affidavit of evidence-in-chief, no doubt informed by, at least in part, the content of the privileged information. Counsel argues that there had been a "very real prospect" that Mr Verber's mother had obtained a forensic advantage from accessing that privileged material.
4. It is said, then, that to permit access to the material sought here by the applicant would fail to give proper consideration to the use of that privileged material in the Venters Seniors' case. It is said that there has never been any waiver of the relevant privilege, that the privilege subsists today, and to permit access to the relevant documents would infringe the substantive rights of the respondents to this application, their important common law immunity and their entitlement to maintain the confidentiality of the documents relied upon by Mrs Venter and the information contained within them.
5. However, the search that the applicant wishes to conduct and the inspections that she wishes to carry out are limited to the affidavits, financial statements and the responses that might have been filed by Mr Verber. There is no evidence before me that would suggest that he has produced or prepared any of his documents by reference to any of the documents that have been infected by the relevant privilege.
6. For example, it is said in submissions that before the relevant documents were disclosed by Mr Verber's mother in her proceedings, she had filed a further amended initiating application and her trial affidavit. But there does not seem to be any suggestion from Mr Verber, or from anybody else for that matter, that after she filed her amended initiating application or her further amended initiating application, Mr Verber filed anything in response, or that his trial affidavit was in any way responsive her trial affidavit. It is not clear, because it is not before me, how the trial affidavits were filed in this case.
7. To the extent that it is said that permitting inspection by the applicant before me of the two Court files that I have particularised already would somehow infringe upon the privilege, or might somehow lead to a breach of confidential or otherwise privileged information, I am not satisfied on the evidence before me that is so.
8. There are a number of other matters that inform the exercise of the relevant discretion. They are set out by McKerracher J in Graham & Colonial Mutual Life Assurance Society Limited [2013] FCR 1213. I was taken to that decision by senior counsel for Mr Verber. There, his Honour emphasises, and there are other cases that emphasise, the private nature of family law proceedings and how they are different from commercial disputes. But here, all of the views of the relevant family members and parties have been sought, and I have heard submissions from them. There is an obligation on the parties in the proceedings before me to maintain the confidentiality of these documents, in any event, if they are inspected. As I have indicated, I am not satisfied by the argument that permitting inspection of the particular documents specified by the applicant in the other Court files will somehow infringe upon the privilege that was breached and is discussed by Carew J in the two Venter decisions to which I have already referred.
9. So for all of those reasons, I am satisfied that I ought to make the orders that are the subject of the applicant's minute of order handed up to me and which for the purposes of these proceedings I will mark as exhibit 1.
10. In respect to the question of costs, the order will be that there is no order as to costs. First, s 117(1) provides that parties to proceedings under the Act bear their own costs ordinarily. There is a discretion to make a different order as to costs if, in the circumstances of the case, the Court thinks there are justifying circumstances, but there are none here.
11. The application was necessary and inevitable because, without an order of the Court, inspection could not take place. It was said that the parties could have consented, as indeed they could have, but that is only one matter to take into account when the Court exercises its discretion under rule 15.13. More than that, when the application first came before me in February, counsel appeared, and there were two applications: this one and the disclosure application that I have dealt with this morning as well. Whilst this one was adjourned for reasons that are not particularly relevant just now, the disclosure application proceeded, so counsels' attendance was probably inevitable in any event.
12. I rather expected to be met with an application that some of the costs thrown away by the applicant by reason of the adjournment of this application might be paid by the respondents because it was at their insistence that the application did not proceed to a hearing on the first occasion it was before me. They took the view that other people needed to be notified of the existence of the application, and so the matter was adjourned so that could take place. As it turns out, none of those people so notified participated in the application except perhaps for the respondent's father, but there is no doubt he would have known about it anyway. But that application is not made, and, consistent with rule 117(1) and the primary position put by the applicant in her draft minute of order, there will be no order as to costs.
13. I am torn between an order that there be no orders to costs and reserving them to trial. Reserving them to trial is not something that is attractive because it just puts off to another day what can be done today. Having said that, there is something, I think, in what Mr Ellis submits, namely that leaving the question of costs to the trial will shed much light on the financial circumstances of these parties. In this case, that is a significant issue, and so I am persuaded that a question of costs on that application - that is, the application in a proceeding filed on 13 March 2025 - should be reserved to the trial judge.
14. When the application for discovery was argued before me, I was given to remark that we could probably all assume that this litigation would be hard fought right to the very end. Such is the impression one gets from reading the Venter line of decisions decided by Carew J and my experience in this application and these interlocutory applications with these parties. Every point will be taken. Costs will be incurred, probably with a view to trying to drown one or other side in costs before the case could ever get to a final hearing.
15. It seems to me that, at least at some part, there might be something like that underlying the prospect of an appeal against the decision that I have just pronounced. Having said that, I have been shown to be wrong before in the Full Court. Maybe this is another occasion when it will happen. We shall see. I think it is appropriate to grant a short stay. There is not much prejudice to the applicant. I hear what she says about the prejudice, but really, in the circumstances of this case, and trying to get it on for hearing, the prejudice is relatively minor.
16. There was difficulty in articulating a ground of appeal, but that does not mean that, in the fullness of time and with the assistance of a fine-tooth comb, some grounds of appeal might well be formulated and ultimately find favour with the Full Court. So to permit the respondents, Mr Verber and his company, to consider their position and file a notice of appeal, if so advised, I intend to stay the operation of the orders that I pronounced to 4 pm on 16 May 2025.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Jarrett.