Adamo and Vinci - [2020] FamCA 537

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI

[2020] FamCA 537

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of an expert – Where the husband proposes to appoint his brother as an expert in the proceedings – Where there has been no attempt to appoint a single expert – Where the husband’s brother may not be considered as an impartial and objective witness to a reasonable observer – Application dismissed

Family Law Rules 2004 (Cth) rr 15.42, 15.52, 15.59

APPLICANT:

Mr Adamo

RESPONDENT:

Ms Vinci

INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

FILE NUMBER:

SYC

3598

2018

DATE DELIVERED:

7 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

6 July 2020

REPRESENTATION

THE APPLICANT

In Person

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Alidenes & Co Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stidwill

Orders

IT IS ORDERED

That the application of the husband to appoint his brother as an expert witness is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamo & Vinci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3598 of 2018

Mr Adamo

Applicant

And

Ms Vinci

Respondent

REASONS FOR JUDGMENT

Proceedings between Mr Adamo (“the husband”) and Ms Vinci (“the wife”) in relation to their financial and parenting dispute have been listed for hearing for five days commencing on 21 September 2020.
The hearing of the matter has been expedited because of concerns about the health of one of the children.
On 30 April 2020 orders were made for the parties to file their trial affidavits by 4pm on 19 June 2020 and the matter was listed on 6 July 2020 for the allocation of hearing dates “if affidavit material has been filed”.
The wife has filed her trial affidavit. The husband has not.
On 26 June 2020 after the date for filing his trial affidavits had passed, the husband filed an Application in a Case seeking, inter alia, the following order:
Permission is granted to the Applicant to tender a report or adduce evidence at a hearing or trial from [Mr B] as an expert witness in the field of expertise of politics, including, but not limited to: (i) [preselection processes of a political party]; (ii) [internal power dynamics of a political party], including relevant political considerations as to whether potential candidates for [preselection] would be successful or not; (iii) relevant entitlements of [elected officials], including as to pre-conditions for the earning of [pensions].
After hearing submissions from the husband, who although he represents himself, is a practising barrister, and from counsel for the wife, I dismissed the application and indicated that reasons would be provided in the substantive judgment.
Because the husband has indicated that he will appeal against the decision, it is appropriate that the reasons be provided now so that they are available to an appeal court.
The wife in these proceedings was an elected official representing a political party. It is the husband’s case, put shortly, that he was instrumental in her pre-selection and election and that he therefore made a contribution to her entitlement to a pension.
The person whom the husband proposes to call as an expert is the husband’s brother, who was also an elected official representing a political party.
The primary position in the Family Court in relation to expert evidence is that there be a single expert appointed. Rule 15.42 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
Purpose of Part 15.5
The purpose of this Part 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 a case;
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e)to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
The Rules provide a mechanism for an application for permission to rely on an expert who is not a single expert. Rule 15.52(2) sets out the matters in relation to which evidence must be given in support of such an application in the following terms:
Application for permission for expert witness
(1)A party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case.
(2)The affidavit filed with the application must state:
(a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c)the issue about which the expert witness’s evidence is to be given;
(d)the reason the expert evidence is necessary in relation to that issue;
(e)the field in which the expert witness is expert;
(f)the expert witness’s training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g)whether there is any previous connection between the expert witness and the party.
In support of this application, the husband relies on an affidavit sworn by him on 26 June 2020.
There is no evidence that any attempt has been made to agree upon a single expert who might give the evidence upon which the husband seeks to rely. There is no evidence directed to why no such attempt has been made.
Annexed to the husband’s affidavit was a statement of his brother setting his extensive involvement with a political party over 30 years.
Also annexed was an affidavit of the husband’s brother in which he stated:
Although [the wife] and I did not get along … the same might be said about my relationship with [the husband]. I don’t believe I have spoken to [the wife] since … 2011. I believe that I have no possible conflict of interest of any kind.
The factors to be consider in determining this application are set out in Rule 15.52(3) in the following terms:
(3)When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a)the purpose of this Part (see rule 15.42);
(b)the impact of the appointment of an expert witness on the costs of the case;
(c)the likelihood of the appointment expediting or delaying the case;
(d)the complexity of the issues in the case;
(e) whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f)whether the expert witness has specialised knowledge, based on the person’s training, study or experience:
(i)relevant to the issue on which evidence is to be given; and
(ii)appropriate to the value, complexity and importance of the case.
(4)If the court grants a party permission to tender a report or adduce evidence from an expert witness, the permission is limited to the expert witness named, and the field of expertise stated, in the order.
The purpose of the rule is to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness. In the present proceedings, no attempt has been made to appoint a single expert.
The husband deposed that his brother is to be engaged without payment but such a generous arrangement may not be available to the wife in the event that she is required to engage an adversarial expert.
It is inevitable that, should there be two additional witnesses on this issue, the trial will be prolonged.
The issue is likely to be complex and contested.
No reasons have been given to explain why a single expert could not be instructed.
Counsel for the wife submitted that the proposed evidence is not in relation to recognised field of expertise. However, it is not necessary to determine that issue.
Neither is it necessary to determine whether the husband’s brother is suitably qualified.
The husband has not demonstrated that it is either necessary or appropriate to depart from the usual process of calling expert evidence by a single expert.
On that basis alone, I would dismiss the application.
However, there is a further consideration. The rules provide at Rule 15.59(3)(a) that an expert must give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability.
Whilst the husband’s brother may be of the view that he is an impartial and objective witness, it is unlikely that a reasonable and properly informed observer would come to the same conclusion.
The husband’s application to appoint his brother as an expert witness is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 July 2020.

Associate:

Date: 07/07/2020