Acone & Paget
[2025] FedCFamC1F 85
•19 February 2025
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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Acone & Paget has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These are interlocutory proceedings between the applicant wife, Ms Acone (the wife) and the respondent husband (Mr Paget).
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.
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:
Ownership Description Applicant’s value Respondent’s value ASSETS 1 J N Street, Suburb O (Suburb O Property) $1,875,000.00 $2,000,000 2 J L Street, Suburb M (Suburb M Property) $825,000.00 $900,000 3 H Town E, Country H (Town E Property) $463,446.16 $NIL 4 H Property in Suburb F (Suburb F Property) $102,136.90 $NIL 5 H Property in Suburb C (Suburb C Property) $613,421.60 $222,595 6 W Ms Acone Westpac Account Number …43 $25,824.66 $NK 7 W Ms Acone Westpac Account Number …44 $166.62 $NK 8 W Ms Acone Westpac Account Number …12 $487.21 $NK 9 W Ms Acone Westpac Account Number …95 $2,554.46 $NK 10 W Ms Acone Westpac Account Number …44 $7,110.71 $NK 11 J Ms Acone & Mr Paget P Bank $49.00 $NK 12 H Westpac account ending #35 $TBA $26 13 H Westpac account ending #11 $TBA $ 14 H Westpac account ending #04 $TBA $31 15 W Motor Vehicle 1 $14,000.00 $NK 16 W Motor Vehicle 2 $10,000.00 $NK 17 H Motor Vehicle 3 $49,000.00 $35,000 18 H Motor Vehicle 4 in Country H $3,000.00 $NK 19 W Jewellery in Australia $E10,000.00 $NK 20 H Jewellery- Wife's jewellery is in Country H with the Husband. $E30,000.00 $NK 21 J City Q Country H Account #00; $101,051.73 USD $160,781.11 $149,657 22 J Household assets at Suburb O Property $2,000 $NK 23 J Mr Paget and Ms Acone R Bank account ending #02; 402K USD $0.00 $NK 24 H ANZ Accounts ending #52 and #79 $1,091.00 $1,091 Total $E4,195,069.43 ADDBACKS 25 W Monies sent from W’s accounts of #95 and #44 to Ms S a number of months prior to separation (18 Nov 2022 separation date) $DISPUTED $ 26 W Monies sent from W’s Choice accounts of #95 and #44 to Ms S from 2016 to mid-2023 (less the $15,455.00 some months prior to separation date) $DISPUTED $ 27 W ATM cash withdrawn from W’s Choice #95 a number of months prior to separation to date $DISPUTED $ 28 W ATM Cash withdrawn from W’s Choice 95 from mid- 2021 to mid-2023 (less the $29,790.00 withdrawn a number of months prior to separation date $DISPUTED $ 29 W Purchase from T Business in 2022 $DISPUTED $ 30 H 50% Share in rental income for Suburb M Property from early 2023 – early 2024. Husband sole use $23,920.00 $11,960 $ 31 H Mortgage payments for the Suburb O Property made by solely by the Wife $16,000.00
Total continuing at $1600.00 per month$ 32 H Cash transfers from the Husband’s Westpac Accounts $310,540.00 $ 33 W Monies withdrawn from City Q Country H Account #00 from 2019 to current - $10,000.00 (USD) $DISPUTED $ 34 W Inadvertent transfer from Husband to Wife in early 2024. $DISPUTED $ 35 W Funds from Mr Paget and Ms Acone R Bank account ending #02 $639,613.05 $ Total $E667,573.05 $ LIABILITIES 36 J Ms Acone & Mr Paget P Bank BSB 11 Account 54 $228,536.83 $ 37 J Ms Acone & Mr Paget P Bank BSB 11 Account 30 $15,729.19 $ 38 H Motor Vehicle 3 Car Loan $NK $ 39 H Personal Loan from Mr Paget’s brother $DISPUTED $680,580 40 H Credit card #19 $DISPUTED $ 41 H Balance of Mr Paget’s Father’s Inheritance from a number of years ago: $510K USD $DISPUTED $ Total $E244,266.02 $ SUPERANNUATION Member Name of Fund Type of Interest Applicant’s value Respondent’s value 42 W Super Fund 1 $12,297.99 $ Total $12,297.99 $ FINANCIAL RESOURCES Ownership Description Applicant’s value Respondent’s value 43 H Pension from Country H Government $1300.00 $ Total $1300.00 $
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.
Rule 7.08(2) provides that the court may allow a party to tender a report or evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion country to any opinion given by the single expert witness and the contrary opinion is or maybe necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for producing evidence from another expert witness.
The submissions of the wife contend that there are special reasons – namely:
(a)Lack of identified valuation methodology;
(b)No reference to instructions provided in mid-2024;
(c)Wife challenges a factual premise relied upon;
(d)Failure to inspect the subject property;
(e)Disparity between conclusion of single expert and conclusion of adversarial expert (Mr B);
(f)Lack of explanation about how various matters have impacted value.
I accept that if only one of these issues were present then it may be that the situation could be remedied by further instructions to the expert, questions to the expert or cross-examination.
It is not plain from the evidence how another valuer will obtain access to the subject property.
The husband says the wife’s witness Mr B does not have the requisite expertise to express an opinion as to real estate value. Mr B provided an opinion to the wife in 2023. In that document – which is annexed to the wife’s affidavit he expressed the view that the property was worth USD$400,325. The document indicates his qualification as “expert engineer”.
In Exhibit 1 the wife provided three curriculum vitae (CV) for valuers. One of those was Mr B. The CV indicates that Mr B as well as holding university qualifications in engineering is a valuer by occupation and experience.
The husband’s submissions raised his concerns about the independence of any persons engaged by the wife. I am unable on the evidence before me to find that the proposed valuer is anything other than arms length.
I am not in a position to make any finding about the matters which are factually contested.
In late 2024 the wife asked questions of the single expert. The wife received a response, which is in evidence. The response addressed many of the questions posed by the wife – such that I am satisfied that her remaining concerns may be addressed through cross-examination, but issues about methodology are not resolved.
The wife submitted that the methodology of the single expert was flawed in so far as it is not possible to ascertain from the terms of the report itself or the answers to the questions how the expert has reached the conclusion expressed. I accept that the report may be vulnerable. Further the wife raised a concern that to the extent that the single expert relied upon a calculation as to building/improvement costs that opinion was not based on the expert’s “specialised knowledge” or “training, study or experience”: Dasreef Pty Ltd v Hawchar (2011) CLR 588 at [37]. On the face of the report this is accurate. These two issues constitute a satisfactory “special reason”.
In circumstances where the subject property has not been inspected the value arrived at by the valuation single expert would be vulnerable at any final hearing. There is a significant disparity between the value asserted by the wife and the value arrived at by the single expert. It would appear that even if I were to appoint a new single expert or adversarial expert that person would not have access to the property.
The wife has proposed three adversarial valuers. I do not propose to select from among the valuers and consequently, since she elected Mr B then I will grant leave for her to rely on an adversarial report from Mr B.
I will order that the experts confer and prepare a joint statement.
Ownership of Suburb F and Town E properties
The parties agree that the husband is not the registered proprietor of those properties. The single expert concluded that the husband was the beneficial owner of those properties.
The husband engaged a lawyer in the United States of America to provide an adversarial report by Mr J. In summary the adversarial report challenges the conclusions as to ownership and asserts that the single expert is incorrect in his application of Country H law.
The husband seeks leave to rely on a report by Mr J. Mr J is a lawyer practising in Country H and the USA. He disputes the conclusions of law reached by the single expert. The wife says that the Court would not permit a report by Mr J as he is not independent of the husband. I am unable to reach a view about the independence of the proposed witness. However, if by virtue of having been engaged as the husband’s lawyer in Country H it is suggested that any report for this Court would be inadmissible I reject that submission.
If the husband was seeking to have Mr J appointed as single expert then I accept that his engagement by the husband would be of significance: FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 (“FGT Custodians”) at [19].
In FGT Custodians Ormiston JA (with whom Chernov and Eames JJA agreed) noted at [12] there is no principle of common law which would “exclude as incompetent the evidence of a person otherwise qualified to give expert testimony but who is said to be affected by interest or bias”.
There is nothing in the Rules which would preclude the appointment of the proposed witness. If in due course it is demonstrated that the witness evidence is undermined by a lack of impartiality that will of course impact on the weight (if any) which can be attached to the evidence but it does not make the evidence inadmissible per se.
I accept that there is a genuine disagreement between the parties about the law as it applies to ownership or beneficial ownership of these properties.
I will direct that the experts confer.
Given the dispute about ownership it is proper that I have evidence of value in the event that I conclude that the properties are beneficially owned by the husband.
It follows that they will need to be valued. The parties should share the cost. However, if in due course, at a final hearing I conclude that the property is not beneficially owned by the husband he will be entitled to revisit the orders which required him to contribute to the costs of the valuer.
The wife suggested Mr V or Mr U. I will give the husband the opportunity to select one of these valuers within 7 days. In the event he does not (for whatever reason) the wife will be at liberty to select one.
Anti-suit injunction
The husband’s Response to Application in a Proceeding filed 3 December 2024 sought at [3]:
That the Applicant Wife be restrained (by way of an anti-suit injunction) from continuing proceedings in [Country H].
On 6 February 2025 the wife filed an affidavit in which she indicated that those proceedings concerned payment of dowry and she had requested that her lawyers in Country H withdraw the proceedings. The wife says that the matter was adjourned to allow the husband to obtain legal advice about the wife’s proposal to withdraw the proceeding.
It would appear that the parties are in agreement. The husband seeks an anti-suit injunction in respect of litigation which the wife has taken steps to withdraw. In that sense there would appear to be no prejudice to the wife in granting the relief sought by the husband.
While the husband’s application sought the anti-suit injunction, the position was not entirely clear at the interim hearing. On the one hand he seemed to be continuing to pursue this relief, on the other hand some of his submissions could be interpreted as indicating that he was content for the courts in Country H to deal with the Country H property.
Given the wife sought to withdraw those proceedings after the husband sought that she be restrained from continuing them I propose to grant the injunction.
Sale of the Suburb M property
The Suburb M property is jointly owned by the husband and wife. It is in joint names.
The husband lives in the Suburb M property in accordance with Order 5 of the consent orders dated 23 August 2023. The orders obliged the husband to meet the mortgage over the Suburb O property as and from his occupation of the Suburb M property and in default for the wife to be permitted to claim the mortgage payments from him in due course.
The husband has not made the mortgage payments.
The husband seeks to be relieved of the obligation created by the consent orders. The wife seeks sale of the Suburb M property.
I accept that the husband seeks sale of the Suburb M property in his application for final orders. He says interim sale will mean that he does not have anywhere to live. The husband’s Financial Statement discloses no source of income. The husband says he is reliant on his brother to meet his expenses. It is not plain from the husband’s evidence what has changed since he consented to the order.
The wife’s application included an interim payment to each part from the proceeds of sale of the Suburb M property. The husband could use those funds in the short term to pay for accommodation.
On balance – the earlier order protects the wife in respect of payments made by her to the Suburb O mortgage and ordering sale at a final hearing will give both parties the advantage that they will know with greater precision the property adjustment which will be ordered and may be able to purchase alternate accommodation. Accordingly, I do not propose to order the interim sale of the Suburb M property or discharge Orders 6 and 7 of the orders of 23 August 2023. As the Full Court said in Harris & Harris (1993) FLC 92-378:
As a generality, the interests of the parties and the Court are better served by there being one final hearing of s.79 proceedings.
The above principle is applicable here.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 19 February 2025
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