Acone & Paget

Case [2025] FedCFamC1F 85


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Acone & Paget [2025] FedCFamC1F 85

File number: SYC 5228 of 2023
Judgment of: CHRISTIE J
Date of judgment: 19 February 2025
Catchwords:

FAMILY LAW- PROPERTY- Interlocutory - Valuation/ownership of property- Expert evidence- Where both parties seek to appoint adversarial experts – Leave granted to both parties to rely on adversarial experts.

FAMILY LAW- INJUNCTION – Where one party seeks to stop the other from continuing proceedings in a foreign country – Injunction granted.  

FAMILY LAW- PROPERTY- Where one party seeks an interim sale of a property- No interim sale ordered.   

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Dasreef Pty Ltd v Hawchar (2011) CLR 588

FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33

Harris & Harris (1993) FLC 92-378

Division: Division 1 First Instance
Number of paragraphs: 62
Date of hearing: 31 January 2025
Place: Sydney
Counsel for the Applicant: Mr Ivantsoff
Solicitor for the Applicant: Finn Roache Lawyers
Respondent: Litigant in Person with Interpreter

ORDERS

SYC 5228 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ACONE

Applicant

AND:

MR PAGET

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The requirements of s 102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.

THE COURT NOTES THAT:

A.The parties have each been advised by the Court:

that pursuant to those requirements, neither party may cross-examine the other party personally;

(a)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(b)as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(c)that a copy of these orders will be provided by the court to Legal Aid New South Wales, which administers the said scheme.

THE COURT FURTHER ORDERS THAT:

2.The Applicant wife (Wife) be granted leave to rely upon an adversarial expert Mr B, property valuer, in relation to the valuation of the property situate at Suburb C (the Suburb C Property).

3.Within 7 days of service of the report of Mr B on the respondent husband the husband and wife make arrangements for Mr B to confer with the single expert, Mr D.

4.The husband must provide to Mr D and the wife must provide to Mr B a copy of the court approved brochure entitled Experts’ Conferences—Guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia.

5.The parties shall inform Mr D and Mr B that at the conference, the expert witnesses must:

(a)       identify the issues that are agreed and not agreed; and

(b)       if practicable, reach agreement on any…

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AGLC
Acone & Paget [2025] FedCFamC1F 85
Case
[2025] FedCFamC1F 85
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court considered an interlocutory application in the matter of Acone & Paget. The parties, who were married in 1989 and separated in 2022, are in dispute over various issues including the valuation and ownership of properties, the interim sale of properties, and the discharge of consent orders relating to mortgage payments. The wife filed an Initiating Application for final property adjustment orders, and the parties entered into consent orders in August 2023. The husband later sought to appoint adversarial experts to challenge the opinions of the single experts appointed by the court. Additionally, the wife sought an injunction to prevent the husband from continuing proceedings in a foreign country, while the husband sought an interim sale of the Suburb M and Suburb O properties.

The court had to decide whether to allow both parties to appoint adversarial experts, whether to grant an interim sale of the Suburb M and Suburb O properties, and whether to grant an anti-suit injunction to prevent the husband from continuing proceedings in a foreign country. The court considered the purpose of the rules governing expert evidence, which is to ensure that expert evidence is only given on significant issues in dispute, necessary to resolve the proceeding, and ideally provided by a single expert to avoid costs. The court also considered the need for the parties to manage their own costs and the potential for the adversarial experts to reach agreement on outstanding issues.

The court granted leave to both parties to appoint adversarial experts, ordering them to confer and prepare a joint statement on any disagreements. The court also appointed a single expert valuer for the Town E and Suburb F properties and required the parties to share the costs equally. The court granted an anti-suit injunction preventing the husband from continuing proceedings in a foreign country but dismissed the wife's application for an interim sale of the Suburb M and Suburb O properties. The court reserved costs of the interim proceedings.

Orders

Orders of the court

SYC 5228 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ACONE

Applicant

AND:

MR PAGET

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

19 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The requirements of s 102NA (2) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings.

THE COURT NOTES THAT:

A. The parties have each been advised by the Court:

that pursuant to those requirements, neither party may cross-examine the other party personally;

(a) that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;

(b) as to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(c) that a copy of these orders will be provided by the court to Legal Aid New South Wales, which administers the said scheme.

THE COURT FURTHER ORDERS THAT:

2. The Applicant wife (Wife) be granted leave to rely upon an adversarial expert Mr B, property valuer, in relation to the valuation of the property situate at Suburb C (the Suburb C Property).

3. Within 7 days of service of the report of Mr B on the respondent husband the husband and wife make arrangements for Mr B to confer with the single expert, Mr D.

4. The husband must provide to Mr D and the wife must provide to Mr B a copy of the court approved brochure entitled Experts’ Conferences—Guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia.

5. The parties shall inform Mr D and Mr B that at the conference, the expert witnesses must:

(a) identify the issues that are agreed and not agreed; and

(b) if practicable, reach agreement on any outstanding issue; and

(c) identify the reason for disagreement on any issue; and

(d) identify what action (if any) may be taken to resolve any outstanding issues; and

(e) prepare a joint statement specifying the matters referred to in paragraphs (a) to (d) and deliver a copy of the statement to each party.

6. A single expert valuer be appointed to value the properties in Town E (the Town E Property) and Suburb F (the Suburb F Property), and the following shall take place:

(a) The respondent husband nominate one of the 2 valuers proposed by the wife within 7 days;

(b) Seven days after the election of the expert, the wife's solicitors forward a joint letter of instructions to the husband, and he or his legal representatives shall provide an executed letter within 48 hours of receipt;

(c) No later than 48 days after receiving the executed letter, the parties do all things and sign all documents necessary to instruct G Pty Ltd to translate the letter of instructions into the language of Country H and to provide the translation to the nominated single expert valuer;

(d) The parties pay for the costs of the translator and the single expert in equal shares as and when they fall due.

7. In the event that the husband does not comply with orders 2(a)-(d) herein that the wife be permitted to select the valuer (in absence of the husband’s election) and send the letter, and should the Wife be required to pay the expert or translator fees in full at first instance, such fees shall be reimbursed by the husband from any amount due to him as a final property adjustment.

8. The valuers appointed pursuant to Orders 2 and 5 herein, be permitted to undertake the valuation without inspecting the Suburb C, the Suburb F or the Town E property and using all information and documents available to them including comparative market sales, dealings, maps and plans and any photographs provided to them in order to provide the value.

9. The husband be granted leave to rely upon an adversarial expert, Mr J, in relation to the ownership of the properties situated at Town E (the Town E Property) and Suburb F (the Suburb F Property).

10. Within 7 days the husband and wife make arrangements for Mr J to confer with the single expert, Mr K.

11. The husband must provide to Mr J and the wife must provide to Mr K a copy of the court approved brochure entitled Experts’ Conferences—Guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia.

12. The parties shall inform Mr J and Mr K that at the conference, the expert witnesses must:

(a) identify the issues that are agreed and not agreed; and

(b) if practicable, reach agreement on any outstanding issue; and

(c) identify the reason for disagreement on any issue; and

(d) identify what action (if any) may be taken to resolve any outstanding issues; and

(e) prepare a joint statement specifying the matters referred to in paragraphs (a) to (d) and deliver a copy of the statement to each party.

13. The husband and wife be restrained (by way of an anti-suit injunction) from continuing proceedings …/... in Country H.

14. The application and response are otherwise dismissed.

15. The costs of these interim proceedings be reserved.

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.

Background

Background to the litigation

They relate to the following topics or issues:(a)Appointment of adversarial experts;(b)Sale of a property at L Street, Suburb M (“the Suburb M property”);(c)Discharge of consent orders which relate to payment of a mortgage over N Street, Suburb O (the Suburb O property);(d)Interim property distribution;(e)An anti-suit injunction;BACKGROUND The parties were married in Country H in 1989 and separated in Australia on 18 November 2022. The wife contends that in 2010 the husband purchased a property in Suburb C, Country H (the Suburb C property). In 2014 the parties purchased the Suburb O property, subject to a mortgage. On 19 July 2023 the wife filed an Initiating Application seeking final property adjustment orders in the Federal Circuit and Family Court of Australia (Division 2). On 23 August 2023 the parties entered into consent orders. Orders 6 and 7 provided:6. That from the commencement of Order 4, and pending further order, the Husband shall pay the home loan repayments to [P Bank] secured over the [Suburb O] properties, as and when the payments fall due, directly to [P Bank], and shall indemnify and keep the Wife indemnified in relation to such payments.7. Should the Husband fail to make the payment/s in accordance with order 6 as and when they fall due, and if the Wife is required to make those payments, the amounts shall be paid back to the Wife from the Husband’s share of the final property settlement. Between mid-2023 and late 2023 the husband made a number of transfers from his bank accounts including transfer of funds overseas. On 14 February 2024 orders were made for valuation of the Suburb C property. Mr D was appointed as valuation single expert. In mid-2024 the parties received the report, identified by the valuation single expert as being his final report concerning the value of the Suburb C property. On 14 February 2024 orders were made for the appointment of a single expert property lawyer (Mr K) in Country H (“the legal single expert”) to obtain evidence in relation to the ownership of the property in Suburb F (the Suburb F Property) and the property in Town E (the Town E Property). The parties received the legal single expert report in mid-2024. In early 2024 the husband commenced to live in the Suburb M property. On 3 October 2024 the husband filed an Amended Response to Application for Final Order. In that Amended Response the husband sought orders for sale of the Suburb M and Suburb O properties on a final basis.CONSIDERATION The applicant wife relied on the documents set out in her Outline of Case Document filed 30 January 2025 and a Tender Bundle (Exhibit 1) and an affidavit filed 6 February 2024. The respondent husband relied on:(a)Response to Application in a Proceeding filed 3 December 2024;(b)Financial Statement filed 28 January 2025;(c)Affidavit filed 3 December 2024;(d)Affidavit filed 5 February 2025. It is useful to understand what the parties contend regarding the assets, liabilities, superannuation and financial resources available for adjustment as between them on a final basis.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In that Amended Response the husband sought orders for sale of the Suburb M and Suburb O properties on a final basis.CONSIDERATION The applicant wife relied on the documents set out in her Outline of Case Document filed 30 January 2025 and a Tender Bundle (Exhibit 1) and an affidavit filed 6 February 2024. The respondent husband relied on:(a)Response to Application in a Proceeding filed 3 December 2024;(b)Financial Statement filed 28 January 2025;(c)Affidavit filed 3 December 2024;(d)Affidavit filed 5 February 2025. It is useful to understand what the parties contend regarding the assets, liabilities, superannuation and financial resources available for adjustment as between them on a final basis. On 30 January 2025 the wife filed a Balance Sheet setting out her contentions as to value. On 28 January 2025 the husband filed a Financial Statement setting out the assets in his name. Doing the best I can to incorporate both parties’ positions into a joint balance sheet the respective contentions are set out below: I have not been able to fully complete the table as the parties have not joined issue on all matters for the purpose of this interim application.Appointment of adversarial experts Two experts were appointed as single experts in this matter:(a)Mr D – to value the husband’s interest in the Suburb C property;(b)Mr K – to provide a legal opinion as to ownership of the Suburb F and Town E properties. The wife is dissatisfied with the opinion of Mr D and the husband is dissatisfied with the opinion of Mr K. Each parties seeks the appointment of an adversarial expert.Suburb C Property Mr D arrived at a value of USD $139,750 (approximately $222,595AUD) for the Suburb C Property. The wife wishes to dispute the evidence of the valuation single expert, Mr D. Rule 7.08 of the Rules provides for the appointment of another expert. It is useful to start with r 7.02 of the Rules which sets out the purpose of the rules which deal with expert evidence. The purpose of the rules is:(a)to ensure that parties obtain expert evidence only in relation to a significant issue in dispute; (b)to restrict expert evidence to that which is necessary to resolve or determine proceeding;(c)to ensure that, if practical and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;(d)to avoid any necessary costs arising from the appointment of more than one expert witness; and(e)to enable a party to apply for permission to tender report or evidence from an expert appointed by that party if that is necessary in the interests of justice. The respondent requires permission of the Court for any further report by operation of r 7.10 of the Rules. The rule itself does not set out the matters which the court might consider when granting leave however the content of r 7.08 which applies when the court is being asked to appoint another expert witness in a case where there is already a single expert are likely to be relevant considerations. Rule 7.08(1) provides if a single expert has been appointed to prepare a report or give evidence in relation to an issue a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.