WILSON and WILSON [2025] FCWA 16

Catchwords:
PRACTICE AND PROCEDURE – Where the parties failed to comply with orders for personal conferral prior to scheduled hearing – Where in the face of that non-compliance the parties were ordered to personally attend at court prior to the commencement of the hearing and to confer – Where as a result of that conferral agreement was reached in relation to a range of matters – Consideration of the obligations of parties and lawyers in relation to conferral – Where oral conferral as distinct from the exchange of correspondence is required to properly discharge those obligations, other than in exceptional circumstances – Potential costs implications where those obligations are not met. PRACTICE AND PROCEDURE– Expert evidence – Where the husband seeks to rely on an affidavit of his accountant purporting to undertake a detailed analysis of the wife’s income and expenditure – Where it is conceded that the affidavit was proposed to be relied upon as expert evidence – Where it is conceded that there has not been even token compliance with the relevant Rules, including as to conferral – Where the affidavit was prepared by the husband’s lawyer, but no explanation for that non-compliance is offered – Where it is not suggested that there are circumstances which would support waiver of compliance – Application to rely on the affidavit dismissed

[2025] FCWA 16
Page 1
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT : FAMILY LAW ACT 1975
LOCATION : PERTH
CITATION : WILSON and WILSON [2025] FCWA 16
CORAM : O’BRIEN J
HEARD : [IN] JANUARY 2025
DELIVERED : 21 JANUARY 2025
FILE NO/S : 3586 of 2023
BETWEEN : MR WILSON
Applicant
AND
MS WILSON
Respondent
Catchwords:
PRACTICE AND PROCEDURE – Where the parties failed to comply with orders for personal conferral prior to scheduled hearing – Where in the face of that non-compliance the parties were ordered to personally attend at court prior to the commencement of the hearing and to confer – Where as a result of that conferral agreement was reached in relation to a range of matters – Consideration of the obligations of parties and lawyers in relation to conferral – Where oral conferral as distinct from the exchange of correspondence is required to properly discharge those obligations, other than in exceptional circumstances – Potential costs implications where those obligations are not met.
[2025] FCWA 16
Page 2
PRACTICE AND PROCEDURE– Expert evidence – Where the husband seeks to rely on an affidavit of his accountant purporting to undertake a detailed analysis of the wife’s income and expenditure – Where it is conceded that the affidavit was proposed to be relied upon as expert evidence – Where it is conceded that there has not been even token compliance with the relevant Rules, including as to conferral – Where the affidavit was prepared by the husband’s lawyer, but no explanation for that non-compliance is offered – Where it is not suggested that there are circumstances which would support waiver of compliance – Application to rely on the affidavit dismissed.
Legislation:
Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Rules of the Supreme Court 1971 (WA)
Category: Reportable
Representation:
Counsel:
Applicant
:
Counsel A
Respondent
:
Counsel B
Solicitors:
Applicant
:
Law Firm A
Respondent
:
Law Firm B
Case(s) referred to in decision(s):
Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022]
WASCA 67
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd (No 5) (2006) 33
WAR 1
[2025] FCWA 16
O’BRIEN J
Page 3
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Wilson has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).
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.
1
The substantive proceedings between [Mr Wilson] (“the husband”) and [Ms Wilson] (“the wife”) were commenced by the filing of the husband’s application in [redacted] 2023 in which he sought orders for alteration of property interests. To their credit, the parties initially agreed interim financial arrangements, and other arrangements including an agreed process for valuations, which were intended to move them towards private mediation. After the parties were unable to reach a final agreement, procedural orders were made on 3 July 2024 and the wife filed her substantive response in [redacted] 2024. She sought orders for alteration of property interests and spousal maintenance, and a departure order in relation to the child support payable for the parties’ daughter [Samantha] born [in] [redacted] 2008.
2
The parties each sought various interim and interlocutory orders. The unfortunate history of the eventual progression to an interim hearing [in] January 2025 is set out later in these reasons. Regrettably, even then the disputes between the parties could not be heard and fully determined at the scheduled hearing as had been planned.
[2025] FCWA 16
O’BRIEN J
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Brief relevant background
3
The husband was born in [redacted] and runs a business known as [redacted] (“the business”). The wife was born in [redacted] and describes her occupation as [redacted], being employed part-time by [redacted].
4
The parties began living together in 1998 and were married in [redacted]. They separated in [redacted]. They have three children, [Jake] and [Henry] who are young adults, and Samantha who is 16.
5
[The company] is trustee for the [Wilson Family Trust] (“the trust”) trading as the business. The husband is the sole director of the company, and is the appointor and guardian of the trust.
6
[Investments Pty Ltd] is, as the name suggests, an investment vehicle. The parties are the directors and shareholders of the company, in their capacities as trustees of the [Investments Trust].
7
[Property Pty Ltd] is trustee for the [Superannuation Fund], of which the parties are the only members. The parties are, as required, the directors and shareholders of the trustee company. The superannuation fund owns an office property on [Street A] in [Suburb A], which is rented out to the business.
8
The parties jointly own two separate but adjoining properties on [Street B] in [Suburb B]. The husband owns a property at [Street C] in [Suburb C].
The Court’s attempts to progress the matter
9
At a hearing before a Magistrate on 15 August 2024, the proceedings were assigned to the Complex Track. The solicitors for the parties were ordered to provide any unavailable dates for counsel by 23 August 2024 so that an interim hearing could be listed on a convenient date. The orders required the husband to file documents by no later than 28 days prior to the listed hearing, and the wife to file a responsive affidavit 14 days later.
10
The solicitors provided unavailable dates for counsel as had been ordered. On 26 August 2024 (the following working day) the matter was listed for interim argument to 9 October 2024, the first date available to accommodate both counsel. At the same time, orders were made requiring the solicitors for the parties to personally confer by face-to-face meeting or telephone, and to file by 4.00 pm on
[2025] FCWA 16
O’BRIEN J
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2
October 2024 a joint Minute setting out clearly any orders which could be made by consent, and any other interim or interlocutory orders still pressed by either party (“the conferral order”). That order was made as it was apparent on the papers that at least some matters should be capable of agreement.
11
The solicitors for the parties did not comply with that order. On 4 October 2024, orders were made in chambers to vacate the scheduled hearing. The parties were given liberty to seek a relisting upon compliance with the conferral order.
12
Those orders provoked a response on the same day. A joint letter was received indicating that the solicitors had conferred by telephone on 2 October 2024, (the date by which the Minute was due to be filed and having had five weeks’ notice of that requirement), but that the husband’s solicitor then required additional time to take instructions. He had scheduled a meeting with the husband for that purpose to take place on 4 October 2024. The letter included a joint request that the scheduled hearing be reinstated, and enclosed a Minute signed by the wife’s lawyer which simply stated that no matters could be agreed, and otherwise recited the relief sought by each party.
13
The request to reinstate the hearing was declined and the parties were again invited to provide information regarding the availability of their counsel for a rescheduled hearing. I could not accommodate a hearing on any of the dates suggested by the parties in October or November 2024, and there were said to be no mutually available dates in January 2025. Accordingly, the matter was relisted to my first available date irrespective of the availability of counsel, being [in] January 2025.
14
In the letter advising of that new listing,1 the parties were reminded that it was apparent on the face of the joint letter sent by their solicitors on 4 October 2024 that even by that point there had not been proper compliance with the conferral order. I directed that they comply, and that the required joint Minute be filed by no later than 10 January 2025.
1 Dated 9 October 2024.
[2025] FCWA 16
O’BRIEN J
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15
A joint Minute was filed on that day. It again stated that no orders could be agreed and set out the orders said to be pressed by each party. The issues were expanded rather than narrowed. The wife sought further injunctive relief which, on her case, became necessary because the husband had pre-emptively withdrawn just over $764,000 from an account operated by Investments Pty Ltd and applied the funds to discharge a debt to [Bank A] in his sole name and secured by mortgage. His application2 for orders permitting him to do just that, and requiring the wife’s cooperation in that process, was made on 19 September 2024. It had been initially listed for hearing on 4 October 2024, and was scheduled to be heard and determined on [in] January 2025.3
16
The wife filed a Minute informally amending her position on 10 January 2025. She also filed an interlocutory application seeking, among other things, to be excused from compliance with the conferral order. In the affidavit sworn in support of that application, she confirmed that the telephone conferral on 2 October 2024 concluded on the basis that the husband’s lawyer would take further instructions and revert to her lawyers. She says that her lawyers heard nothing further until 6 December 2024. She acknowledges that she did not instruct her lawyers to follow-up in the interim.
17
She says further that on 6 December 2024, the husband’s lawyers wrote to hers proposing that they confer before 20 December 2024, and that her lawyer responded on the same day confirming agreement to do so. She says that various conferral times were proposed, and that in so doing her lawyer set out specific details of the matters that might be expected to be agreed, so that the husband’s lawyer could take instructions before conferral took place.
18
The wife says that the conferral was initially scheduled for 10 December 2024 but was then rescheduled by the husband’s lawyer firstly to 12 December 2024, and then again to 18 December 2024. She says that telephone conferral took place on that day, and again concluded with the husband’s lawyer informing hers that he would need to take instructions and revert to her, which he planned to do urgently. There was then no further response before an email on
2 Informally contained in a Minute of Proposed Orders.
3 Despite the injunction having been sought some time before the hearing on [in] January 2025, an undertaking as to damages had not been filed by the wife, and that issue was not addressed by either party until I raised it with them during the hearing. The wife filed an undertaking as to damages on 16 January 2025.
[2025] FCWA 16
O’BRIEN J
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7
January 2025 confirming that the husband and his lawyer were to meet that day. By further email on 9 January 2025, the husband’s lawyer advised that he had taken instructions and did not think there was “any scope for agreement”. He did not expand on that statement in any way. The husband’s lawyer then prepared the joint Minute which was filed on 10 January 2025.
19
On receipt of that Minute, I made an order requiring the parties and their solicitors or counsel to personally attend at court by no later than 9.00 am on [the morning of the hearing] [in] January 2025, and to meet face-to-face to confer as to the matters the subject of the conferral order.
20
The parties complied with that order and, albeit over the course of the morning and with the hearing being stood down on occasion, reached agreement in relation to a wide range of matters including:
(a) the payment of non-periodic expenses for Samantha;
(b) an interim order for the husband to pay or cause to be paid various expenses for the benefit of the wife, to be characterised as “non-periodic spousal maintenance”;
(c) interim orders for alteration of property interests whereby each party would receive $120,000 to be paid into their respective lawyers’ trust accounts, and the wife would receive an additional $20,000;
(d) the payment of taxation liabilities;
(e) an injunction pending the determination of the remaining competing interim and interlocutory applications;
(f) the dismissal of the wife’s interlocutory application filed on 10 January 2025; and
(g) the grant of permission to the parties to rely upon certain affidavits.
[2025] FCWA 16
O’BRIEN J
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21
Orders were also able to be made by consent to resolve a dispute as to whether or not the wife could rely on certain parts of her affidavit filed on 31 July 2024, in which she gave evidence as to the circumstances in which the husband resiled from a Heads of Agreement executed after mediation. The dispute as to the admissibility of that evidence had been raised in the husband’s affidavit filed on 19 September 2024 but was then apparently not the subject of any conferral until exchanges between counsel, and my observations in relation to those exchanges, late in the hearing [in] January 2025.
22
Having asserted based on the earlier inadequate attempts at conferral that no agreement could be reached in relation to any matter, the parties reached agreement in relation to the matters just described to a level of detail which required four typed pages to record agreed undertakings and consent orders.
23
That process having consumed all the time that had been allocated for a hearing (and more), the remaining disputes were adjourned to be heard and determined [in] February 2025, the first available date.
Observations – the duty to confer
24
As I made clear to counsel during the hearing, I do not purport to make any finding as to the accuracy or otherwise of the wife’s account as to the course of the attempts at conferral. I make no finding as to how responsibility for the failure to properly confer should be apportioned between the parties or between those representing them. It would be inappropriate to do so without the parties, or any lawyer whose interests or reputation might be adversely affected, having proper opportunity to be heard on the matter. It would be of no discernible benefit to the parties in any event, particularly at this stage of the proceedings. If that matter is to be revisited, that may appropriately occur in the context of any application for costs that might be made at the conclusion of the proceedings.
25
That said, self-evidently and no matter how responsibility might be apportioned, the sequence of events outlined above reflects that the proceedings to date have been conducted in a manner which is entirely unacceptable.
[2025] FCWA 16
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26
The main purpose of the Family Court Rules 2021 (WA) (“the Rules”) is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.4 The court has obligations in promoting that main purpose5 as do the parties and their lawyers.6
27
I acknowledge that, presently at least, there is no express provision in the Rules requiring oral conferral. That said, r 79 requires that before filing an application seeking interim, procedural, ancillary or other incidental orders a party must make a reasonable and genuine attempt to settle the issue to which the application relates, subject only to certain exceptions which do not apply here. Even more particularly, in a property case such as this one, the Rules provide that no such application or response will be accepted for filing unless the parties have conferred “on a without prejudice basis for the purpose of identifying, resolving and narrowing the issues in dispute”, and have certified that they have done so.7
28
It is the common experience of judicial officers in this Court that those requirements are far from universally met. It is not uncommon for parties and practitioners to purport to certify compliance with the Rules by filing a certificate that confirms that they have sent an email or letter in relation to the matter and received no response. Frankly, it is that common experience which has led to a number of judicial officers adopting the practice of making orders for personal conferral by face-to-face meeting or telephone, as occurred in this case.
29
Orders of that nature should not be necessary. As the Court of Appeal has observed:
“As should be well understood, ordinarily at least, discharge of the obligation to confer will require oral communication. That is because, as we observed above, the object of the rule is to promote constructive discussion. As Martin CJ observed more than 15 years ago, the ‘exchange of furious correspondence’ is not meaningful conferral.”8
4 Family Court Rules 2021 (WA) r 5.
5 Ibid rr 6 and 7.
6 Ibid r 8.
7 Ibid r 79(4).
8 Murray Riverside Pty Ltd v Toscana (WA) Ravenswood Estate Pty Ltd [2022] WASCA 67, [56].
[2025] FCWA 16
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30
Lest that observation be misunderstood by lawyers practising primarily in this Court, it was made by reference to Order 59 Rule 9 of the Rules of the Supreme Court 1971 (WA), which is in the following terms:

9. Parties to confer before making application
   (1) No order shall be made on an application in chambers unless the application was filed with a memorandum stating —
   (a) that the parties have conferred to try to resolve the matters giving rise to the application; and
   (b) the matters that remain in issue between the parties.
   (2) The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
   31
   In common with the Rules of this Court, Order 59 Rule 9 does not expressly require oral communication as a component of conferral. The clear statement made by the Court of Appeal applies with equal force to the conduct of proceedings in this Court.
   32
   The observations of Martin CJ to which the Court of Appeal referred resonate more broadly, and bear repetition in full:9
   “In far too many cases, the Rule is complied with in form rather than substance. That is because too often the representatives of the parties consider that the exchange of furious correspondence is an adequate substitute for meaningful conferral in relation to the substance of the interlocutory dispute…
   For my part, I favour an approach to the construction of the rule which would lead to the conclusion that it has not been substantively complied with unless and until legal representatives of the parties, with authority to resolve the particular interlocutory dispute in question, have orally conferred in respect of the substantive issues that arise in relation to that dispute, either by telephone or by meeting face-to-face. It follows that any legal representative who declines or refuses to participate in such a process of conferral, without good cause, is at risk of being ordered to pay the costs which flow from that refusal personally. There may, of
   9 Deleting only comments specific to the case before His Honour.
   [2025] FCWA 16
   O’BRIEN J
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   course, be cases in which a departure from this approach to the application of [the rule] is justified, but, in my view, those cases will be exceptional.”10
   33
   While I do not suggest that the lawyers involved in this matter engaged in conduct of the nature about to be described, the following further observations by the Court of Appeal also resonate with what is regrettably common experience in litigation in this Court:
   “It should not need to be said that inflammatory and pejorative language such as ‘risible’ and ‘disingenuous’ is antithetical to genuine and constructive engagement in the process of conferral.”11
   34
   And elsewhere:
   “Nor is it consistent with the object of the rule [requiring conferral] for a party’s solicitors to seek to unilaterally impose conditions on the other party’s solicitors before they are prepared to engage in any discussion.”12
   35
   The limitations on the resources available to the Court are well-known, as is the impact on litigants of delay in the resolution of their matters. Proper and genuine conferral in all cases, especially where parties are represented, is essential to the promotion of the main purpose of the Rules, and to the discharge by lawyers of their obligations.
   36
   The discharge of those clear obligations requires lawyers to actually talk to each other. The conversation must be conducted bona fide, and reflect genuine efforts to resolve or narrow issues, not tokenistic “compliance” with the Rules. The conversation must be undertaken with the benefit of adequate instructions; while it may need to pause for instructions to be taken, it must then be resumed and completed. The onus is clearly on the lawyer at whose request the conversation is paused to proactively initiate its resumption.
   37
   This case is but one of many examples in which those obligations have not been met, to the detriment of the parties themselves and the system more broadly.
   10 Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd (No 5) (2006) 33 WAR 1, [4]–[5].
   11 Ibid [55].
   12 Ibid [56].
   [2025] FCWA 16
   O’BRIEN J
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   The singular contentious matter resolved at the hearing
   38
   As already noted, once the parties and their lawyers properly conferred agreement was reached in relation to a significant range of matters, albeit on an interim basis.
   39
   Only one other matter was able to be heard and determined in the time which remained available.
   40
   The husband sought to rely on an affidavit of his accountant [Mr Owen] filed on 10 January 2025. That affidavit, which was prepared by the husband’s lawyer and ran to some 479 pages including annexures, purported to represent an “analysis of the wife’s income and expenditure” by reference to documents disclosed by her.13 The accountant said that he uploaded “her bank and credit cards from her disclosure” (presumably referring to statements) to a “subscription service known as Docuclipper” and then “imported these transactions into Xero accounting software which then summarises this material into a format that the program can more readily prepare a report on (sic)”.14 He then prepared a report summarising his findings.
   41
   In the absence of application or submissions, it is not necessary for me to determine whether by that process, and in particular the uploading of the wife’s confidential documents to what would appear to be an external service provider, there was any breach of what is commonly described as the Harman undertaking, or r 203.
   42
   The wife objected to the proposed reliance on the affidavit.
   43
   Counsel for the husband appropriately conceded the following:
   (a) that the evidence of Mr Owen was proposed to be adduced as expert evidence, given that it involved analysis of facts applying his professional expertise, and reaching a conclusion;
   (b) that the only evidence in support of the husband’s application seeking leave to rely on that affidavit did not comply with r 277(2);
   (c) that there had been no conferral as required by r 277(2)(a);
   13 Affidavit of Mr Owen filed 10 January 2025 at [6].
   14 Ibid.
   [2025] FCWA 16
   O’BRIEN J
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   (d) that there was no compliance with r 279; and
   (e) that the affidavit of Mr Owen did not comply with rr 287 and 288.
   44
   In other words, it was conceded that there had not been even token compliance with the clear requirements of the Rules in relation to expert evidence. No explanation for that was proffered, nor was it suggested that there was any circumstance which would excuse that, or support waiver of compliance with the Rules.
   45
   The provisions of the Rules in relation to expert evidence are clear, and their purpose is well-known. Indeed, the genesis of the current Rules lay in a perceived need to address the conduct of litigation undertaken exactly in the manner adopted by the husband in this case.
   46
   In those circumstances, I was not prepared to permit the husband to rely on the affidavit. I dismissed his application to do so, indicating (with the consent of counsel) that I would provide my reasons for doing so in this judgment. Counsel also sensibly agreed that judgment could be published from chambers, to avoid the cost to the parties associated with another attendance at court.
   I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
   KM
   Associate
   21 JANUARY 2025