Althuis & Paz
[2025] FedCFamC1F 88
•19 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Althuis & Paz [2025] FedCFamC1F 88
File number: SYC 4879 of 2024 Judgment of: CAMPTON J Date of judgment: 19 February 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are in dispute as to property adjustment – Where the parties seek competing relief as to a stay of these proceedings pending the outcome of proceedings in Country B, or whether an anti-suit injunction ought to be made restraining the prosecution of the proceedings in Country B – Where each the husband and the wife have made an application to adduce their own expert evidence as to the operation of the law of Country B, bypassing the appointment of a single expert – Consideration of the purpose of Pt 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the adducing of expert evidence other than by a single expert would considerably delay and increase the expense of the proceedings – Orders made for the appointment of a single expert witness and for the matter to be listed for hearing as to a stay and as to an anti-suit injunction. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 39, 79, 95 and 96
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Pt 7.1, rr 1.04, 7.02, 7.08 7.10, 7.11, 7.13, 7.25 and 7.26
Cases cited: Clayton v Bant (2020) 272 CLR 1 Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 17 February 2025 Place: Sydney Counsel for the Applicant: Ms Alexandre-Hughes Solicitor for the Applicant: Galt Kenway Family Law Counsel for the Respondent: Mr Stapleton Solicitor for the Respondent: Ramsden Family Law ORDERS
SYC 4879 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PAZ
Applicant
AND: MS ALTHUIS
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Orders 1 and 2 made on 18 September 2024 are discharged.
2.The relief sought in paragraph 1 and 2 of the Amended Application in a Proceeding of the husband filed on 17 February 2025 and the relief sought in paragraphs 2 and 3 of the Response to an Application in a Proceeding of the wife filed on 14 February 2025 be listed for hearing for one day at 10.00 am on 4 June 2025. The parties have leave to appear electronically, with their legal representatives to appear in person.
3.For the purpose of the hearing on 4 June 2025, the wife identifies that she relies on her affidavit filed on 14 February 2025 and the husband identifies that he relies on his affidavit filed 8 February 2025. The parties will not be permitted to file any further affidavits and may not rely upon any past affidavits without the leave of the Court.
4.The relief sought in paragraphs 3, 4, and 5 of the Amended Application in a Proceeding of the husband filed on 17 February 2025 and the relief sought in paragraphs 4, 5, 6, and 7 of the Response to an Application in a Proceeding of the wife filed on 14 February 2025 are dismissed.
5.Within 14 days of the date of these orders, the solicitor for the wife is to provide to the solicitor for the husband the names of three suitably qualified experts as to the law of Country B to be appointed as a single expert to report and opine as to:
(a)The validity and effect of the Country B Divorce Agreement made as between the parties and notarised in 2023;
(b)The powers available to the Judicial Court of City C or as to any other court in Country B to make orders adjusting the property of the parties both in Country B and outside Country B and the relevant considerations in making such determinations.
(c)The pathway and procedures to the progress of each proceeding in the Judicial Court of City C including the time frame for each cause to be finalised and whether the determinations in those proceedings will completely resolve the marriage controversies between the parties, including the adjustment of their property;
(d)Whether the law in Country B enables the making of an order preventing the wife from prosecuting the current proceedings in this Court, and if so, the principles and considerations applicable to that suit;
(e)Will orders made pursuant to s 79 of the Family Law Act 1975 (Cth) in this forum be recognised and enforced in Country B, including the processes and considerations, if any, for such recognition and enforcement; and
(f)Such other matters as agreed between the parties.
6.Within seven days of receipt of the names of three suitably qualified experts pursuant to opine as to the law of Country B, the solicitor for the husband will advise the solicitor for the wife which expert is to be appointed as the single expert.
7.Within 14 days of the appointment of the single expert, the solicitors for the parties shall confer and cause a letter of instruction to be forwarded to the expert to produce an opinion and report.
8.That the wife cause the single expert report to be filed when it is released to the parties.
9.The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) apply to the fees of the single expert appointed pursuant to these orders.
10.On or before 21 May 2025 each of the parties are to file a Case Outline document including:
(a)A list of material relied upon;
(b)A chronology of facts that they ask the Court to take into account; and
(c)Written submissions of no more than five pages.
11.In the event that either party becomes aware of any matter that would prevent the proceedings commencing on the date allocated or continuing to conclusion on that day, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
12.Costs of both parties are 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 the pseudonym Althuis & Paz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
In mid-2023 Mr Paz (“the husband”) and Ms Althuis (“the wife”) entered a document described as a “Country B Divorce Agreement” with the benefit of lawyers from Country B. The agreement was notarised by way of Country B law in 2023.
On 26 June 2024 the wife filed an Initiating Application filed in the Federal Circuit and Family Court of Australia (Division 2) seeking orders as to the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) for the husband to transfer to her a property at E Street, Suburb D NSW (“the Suburb D property”), and for he to pay her a cash adjusting sum.
On 12 September 2024 the husband filed a Response to an Initiating Application seeking for the wife’s Initiating Application to be dismissed, contending an absence of jurisdiction including by application of principle by way of res judicata, cause of action estoppel, and contending that Australia is a wholly inappropriate forum.
On 18 September 2024 orders were made by a senior judicial registrar providing for the proceedings to be listed for an interim hearing as to the threshold question of jurisdiction, res judicata, cause of action estoppel, inappropriate forum, and oppressive proceedings, and for all outstanding applications and responses in the matter to be stayed pending the determination of that threshold hearing.
On 24 September 2024 the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
In early January 2025 the husband by summons in the Family Affairs division of the Judicial Court of City C sought relief as to the validity and effect of the Country B Divorce Agreement, including it being enforceable “worldwide”, for there to be “no new liquidation of the matrimonial property”, and for the wife to pay to the husband EUR6,000. The first listing date of that summons is September 2025.
In late January 2025 a notation was made at a case management hearing notifying the parties that the differing and varying terms of relief sought by each of them in the proceeding, both substantially and procedurally, needed to be refined with precision.
In early February 2025 the husband commenced other proceedings in the Family Affairs division of the Judicial Court of City C seeking orders as to “judicial division” of “the remaining joint assets” of the parties, including to sell the Suburb D property and apply the proceeds of sale to discharge the mortgage secured on the property in favour of F Bank and thereafter to be divided equally between the parties. It is not known to this Court when the first listing date of those will be allocated.
These reasons determine:
(a)The Amended Application in a Proceeding filed by the husband on 17 February 2025 seeking that the “threshold hearing” identified in the orders made 18 September 2024 be stayed until after the conclusion of proceedings in the Judicial Court of City C, and seeking leave to adduce evidence from an expert in the law of Country B other than a single expert appointed pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), Dr G; and
(b)The Response to an Application in a Proceeding filed by the wife on 14 February 2025 seeks an anti-suit injunction preventing the husband from continuing to prosecute his claims in the Judicial Court of City C, and for she also to adduce leave to adduce evidence from an expert in the law of Country B other than a ch 7 single expert, Ms H.
For the reasons that follow, orders will be made facilitating the appointment of a single expert pursuant to ch 7 of the Rules to opine as the operation and impact of the law of Country B, including as to the nature and effect of the Country B Divorce Agreement and as to the nature and conduct of the proceedings initiated by the husband in the Judicial Court of City C as to the adjustment of the property of the parties. The relief sought by each of the husband and the wife for leave to adduce expert opinion evidence from both Dr G and Ms H will be dismissed. Directions will be made listing for the matter for hearing on 4 June 2025 as to the husband’s application for a stay of these proceedings pending the conclusion of the proceedings initiated by him in the Judicial Court of City C and the wife’s application for an antisuit injunction restraining the husband from prosecuting those proceedings.
BACKGROUND
The wife was born in 1986 in Country B and is currently 38 years old. The husband was born in 1987, also in Country B, and is currently 37 years old. The parties commenced cohabitation in 2009, married in Country B in 2015, and separated on 22 December 2022. The husband says that he and the wife returned from Australia to live in Country B in late 2022. The wife says that the husband returned to live in Country B in late 2022 and that she returned to live in Country B in early 2023.
In 2015, prior to getting married, the parties signed a pre-marital contract in Country B.
The wife has a 60 per cent share in a property in City C with an estimated value in the range of $165,000 to $200,000. The husband has not filed a financial statement in this proceeding.
In 2015 the parties migrated to Australia to live and for employment purposes. Both parties are now Australian citizens.
In 2019 the parties’ child, X, was born in Australia. He is currently five years old.
In 2020 the parties jointly purchased the Suburb D property for $1,435,000 sourced from $430,555 of their savings and the balance from a loan secured by way of mortgage over the property in favour of F Bank. They remain as the joint registered owners of the property. The wife estimates that the Suburb D property is valued in the range of $1.8 million and that the mortgage in favour of F Bank is in the range of $160,000.
The parties acquired and developed corporate interests in Australia including the husband being one of a number of directors of J Group, which is comprised of J Pty Ltd which in turn owns K Pty Ltd, K2 Pty Ltd, and a company called K3 Limited. J Pty Ltd has a number of shareholders. The husband is currently a co-CEO of K Pty Ltd. Both the husband and the wife have superannuation interests in Australia.
The notarised 2023 Country B Divorce Agreement law broadly provides, inter alia, under the heading “Liquidation of the Matrimonial Regime” that the parties are subject to the regime of separation of property, that there is no active or passive mass to share, and that the spouses have no claim against each other. It further provides for the exercise of parental authority over the child, for the child’s habitual residence to be alternately set at each parent’s home, and for he to spend equal time with each parent.
In early August 2024 the husband sent a letter of instruction to Dr G seeking for him to provide expert opinion evidence as to the applicable civil code and Country B law that governs property settlement arising from divorce, whether property from other countries may be taken into account, and the nature effect of the Country B Divorce Agreement, including whether it ousts jurisdiction of the Country B courts.
In late August 2024 and mid-September 2024, the husband’s solicitors sent letters to the wife’s solicitors giving notice of his intention to seek the wife’s Initiating Application in these proceedings to be dismissed on the basis of jurisdiction, res judicata, cause of action estoppel, inappropriate forum, and oppressive proceedings. On the same day the husband filed the first affidavit of Dr G.
In mid-September 2024 the husband’s solicitors sent the wife’s solicitors a letter inviting the wife to agree on the appointment of Dr G as the single expert pursuant to ch 7 of the Rules and if not enquiring as to whether the wife seeks to adduce her own expert evidence on the issue. In mid-September 2024 the wife’s solicitors sent the husband’s solicitors correspondence which did not engage with the questions posed by the husband’s solicitors in the letter dated mid-September 2024.
Pursuant to the directions made on 18 September 2024, the wife filed points of claim on 11 October 2024 and the husband filed points of defence on 21 January 2025.
The husband says that as the parties were unable to reach agreement as to the appointment of a suitably qualified single expert to opine as to the validity, nature, and effect of the Country B Divorce Agreement he proceeded to instruct Dr G to produce a supplementary report, dated 28 January 2025 attached to his affidavit filed on 7 February 2025. He did not explain why he elected not to file an application in a proceeding seeking the appointment of a single expert in the law of Country B.
In early October 2024 the wife’s solicitors sent a letter to Ms H, a Country B barrister, requesting that she act as an expert witness in the matter as to the law of Country B. The wife says that as the husband has put jurisdiction and forum in issue in the proceedings, she retained Ms H as an expert in the law of Country B “to help [her] understand the implications of [the husband’s] position in these and the two [Country B] proceedings he has commenced.” Ms H produced an expert report dated 8 October 2024 and an updated report dated 13 February 2025, including critiques of the husband’s expert’s opinion. At the hearing on 17 February 2025 the husband foreshadowed that it will be necessary for him to produce a further opinion or opinions, from Dr G. The wife did not explain why she elected not to file an application in a proceeding seeking the appointment of a single expert in the law of Country B.
In early January 2025 the husband by summons sought his first relief in the Family Affairs division of the Judicial Court of City C.
In early February 2025 the husband commenced the second set of proceedings in the Family Affairs division of the Judicial Court of City C.
CONSIDERATION
The substantive case of the husband seeking dismissal of the wife’s Initiating Application filed on 26 June 2024 by application of principles of res judicata is presented with challenges. The right in issue in the s 79 property settlement proceeding in this forum is a right that is created by a statutory provision which confers a discretionary power on the Court to make an order of the kind that is sought by the wife (Clayton v Bant (2020) 272 CLR 1 (“Clayton v Bant”) at [25]). The entry of the Country B Divorce Agreement does not appear to give rise to a res judicata. The issue of property adjustment between the parties does not appear to have been determined. In any event, rights created by s 79(1) cannot “merge” in any judicial orders than final orders of a court having jurisdiction under the Act to make orders under that section. The rights of the wife to seek orders under s 79 continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted (Clayton v Bant at [26]). The claim as to issue estoppel engages with not dissimilar challenges.
It appears relatively uncontroversial that this forum has jurisdiction to hear the s 79 property adjustment between the husband and the wife (s 39(4) of the Act) and associated relief sought as to the Suburb D property.
The husband’s substantive relief is for a permanent stay of these proceedings. The basis appears to be that this Court is a clearly inappropriate forum. The wife identifies that she has regularly invoked the jurisdiction of this Court and has prima facie right to insist upon its exercise.
The conduct by the parties of the litigation in both forums has been haphazard, piecemeal, and evolving as one unilaterally undertakes steps without notice or consultation with the other. The construction of their current substantive and interlocutory relief in this forum presents interrelated, but separate (they have identified it as “threshold”) hearing events, being:
(a)Firstly, the husband seeking a stay of proceedings in this forum until the proceedings in the Country B court are concluded, while the wife seeks an anti-suit injunction progress in these proceedings and preventing the husband from continuing to prosecute the Country B proceedings and implicitly progressing these proceedings; and
(b)Secondly, the substantive relief of the husband for a permanent stay of these proceedings.
The parties are in factual dispute as to what was intended by the Country B Divorce Agreement.
For the first tranche of proposed separate hearing, the husband has filed his affidavit on 8 February 2025 and the wife filed her affidavit on 14 February 2025. Subject to the adducing of expert evidence, that first tranche of competing relief can be allocated for summary hearing over one day.
Each of the parties seek leave to adduce expert opinion evidence in this proceeding for the purposes of each stage of the separate hearing events to opine as to their various contentions, including the validity and effect of the Country B Divorce Agreement. The husband, by way of his expert, contends that the agreement has the effect of preventing either party from bringing a claim upon the property of the other. His summons filed in early January 2025 seeks that the Country B Court determine the validity and effect of the Country B Divorce Agreement. The wife says, by way of her expert, that the Country B Divorce Agreement is void because it does not include the parties’ Australian assets and does not comply with multiple parts of Country B law. She contends that the liquidation of the matrimonial regime must be complete, and the division of joint properties exhausted. She says that the Country B Divorce Agreement does not make such provision. She makes complaints as to failures to disclosure real estate, shares, and that the real estate, shares, and superannuation interests in Australia that are not resolved in whole or in part by the Country B Divorce Agreement. The wife’s expert opines that the husband’s summons filed in early January 2025 in Country B will be dismissed.
The husband is firm in his position grounded from the evidence of his expert that until the Country B Divorce Agreement has been set aside, terminated, held to be unlawful, or held not to be binding by any court or tribunal in Country B, it remains binding.
It is the husband’s case as to the binding effect of the Country B Divorce Agreement has “worldwide” operation. The wife’s case is that the Country B Divorce Agreement, if it is not void, does not constitute a binding agreement for the purposes of Pt VIII of the Act. The husband may concede that the Country B Divorce Agreement does not oust the s 79 jurisdiction in this court (Clayton v Bant).
The husband says that the Judicial Court of City C, by way of the summons filed in early January and February 2025, can determine all issues as to the adjustment of the property of the parties, whether that property be in Country B or Australia. Implicitly, this will include the real property, shareholdings, and superannuation of the parties.
The wife’s contention is the expert opinion evidence will unequivocally establish that the Country B Divorce Agreement is void and unenforceable, that the husband’s first action in Country B is defective and will be dismissed, and the second action is anticipatory in nature and is unlawful because in reality it seeks protection in the event orders are made in Australia. Her case is therefore that the proceedings in Country B delay the resolution of the matter.
The husband’s response is to allow the Judicial Court of City C to deal with the issues in dispute as that course will reduce the costs to the parties and will impact on the issues and duration of proceedings in Australia, such that it will confine the issues for the Court here. The husband’s case is that, irrespective of the Judicial Court of City C’s determination as to the validity of the Country B Divorce Agreement, Australia is a clearly inappropriate forum. That contention grounds his application for a permanent stay of these proceedings.
Adopting the husband’s course to await the determination of the Country B litigation would by default to allow the proceedings in the Judicial Court of City C to continue any determine the wife claim for an anti-suit injunction by stealth. That relief ought to be determined as soon as is possible. It will be listed for hearing.
The heart of the contest between the parties is to avoid the risk of inconsistent findings on the same issues or matters that may be subject to differing determinations according to different regimes in Australia and Country B. A preliminary determination, dependent on the evidence, may be required as to which of the husband or wife be precluded from asserting rights in their forum of choice.
The remaining issue for both separate hearings is whether there ought to be a single expert appointed consistent with the objects and purposes of the Rules, and specifically ch 7 of the Rules, or whether the parties achieve leave to adduce evidence their own experts.
THE LAW
Rule 7.02 specifies the purpose of Pt 7.1 of the Rules. Those include:
(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;
…
(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 that is necessary in the interests of justice.
Rule 7.10 provides:
7.10 Permission for expert’s reports and evidence
(1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, other than a single expert witness.
…
Pursuant to r 7.11 of the Rules, a party may seek permission to tender a report or adduce evidence from an expert witness. When considering whether the permit a party to tender a report or adduce evidence from an expert witness, the Court must take into account the purpose of Pt 7.1 of the Rules, the likely cost, the likelihood of the appointment expediting or delaying the proceeding, the complexity of the issues, whether the evidence should be given by a single expert witness rather than an expert appointed by one party only, and whether the expert has specialised knowledge, based on the person’s training, study, or experience (r 7.11(3)). No submission was made as to any deficiency in the qualifications of the respective experts.
The Full Court has consistently not read down the circumstances where there are genuine issues in the proceedings that warrant the adducing of probative expert evidence. As such, the view often taken is that ch 7 of the Rules must not be applied in a way that results in what may be a significant issue in the proceedings being foreclosed from effective challenge, or in a way that would compromise the interests of justice, in preventing potentially relevant evidence being placed before the Court.
CONSIDERATION
In addition to not explaining why either party did not seek to appoint a single expert in the law of Country B, the evidence of each of the parties and their submissions for leave pursuant to r 7.10 do not effectively engage with the purpose of the Pt 7.1 of the Rules. The piecemeal development of the evidence of each parties’ expert has been problematic.
The content of instructions to one expert has not been reflective of the instructions to the other, resulting in each providing opinions grounded from differing foundations, considerations, and objectives. The instructions are currently of little probative value, in that they either are in response to an enquiry constructed from the party’s perspective or fail to elicit an opinion as to relevant subject matters for the issues to be decided in this forum. By way of example, the wife’s contentions as to the determinations the husband seeks in the Judicial Court of City C is that they are “opposite rulings” which are “prohibited”. That deficiency has been compounded by each party then progressing the opinions from each expert as events have unfolded over the past months. In submissions, the circumstance that has devolved was described as a “tennis match between experts” regarding the operation and effect of the Country B legal system. That said, the content of that set of volleys between the respective experts has been diverted to focus on the validity and effect of the Country B Divorce Agreement without sufficient consideration of the integers and impact of the proceedings in the Judicial Court of City C.
The husband’s expert has given three reports and will need to give another in order to respond to opinions of the wife’s expert in her report of 14 February 2025 and because he has generated the second proceeding in Country B.
The current presentation of the respective expert evidence does not:
(a)Engage on all fours with the other as to relevant opinion from a common platform of instructions; and
(b)Opine as to additional considerations to be adduced from an expert, including as to the relevant considerations as to the adjustment of property in Country B, the pathway and duration of the Country B litigation and the recognition and enforcement of Australian orders in Country B. The husband’s expert, in response to a question constructed from a false premise as to whether Country B will recognise an Australian judgment that challenges the Country B Divorce Agreement, provided an answer that is a nonsense if it is the fact that the Country B Divorce Agreement is not capable of enforcement in Australia.
This leads to the conclusion, should leave be achieved, of the necessity for each expert witness potentially being required to opine as to additional matters, each critiquing the opinion of the other, they then conferring and producing a memorandum of agreed and disagreed matters, and to each being extensively cross-examined electronically as to disputed matters of fact and law. These steps will exponentially increase the costs of and delay the proceedings, clouding, rather than simplifying, the issues to be determined. That conclusion is contrary to the mandate in s 95 and s 96 of the Act and r 1.04 of the Rules that disputes are to be resolved as quickly, inexpensively, and efficiently as possible.
The parties neglected to comply with the Act and Rules, bypassing the purpose of the legislation by making a simple application for the appointment of a single expert as to opine as to the law of Country B. The course they have adopted has in and of itself produced unnecessary costs and inefficiencies. The process of adducing evidence from each of their experts is not yet complete. The presentation of the expert evidence and its content is likely to increase the complexity of the issues to be determined. It was not submitted that the interests of justice would be diverted if a single expert as to the law of Country B was appointed. The appointment of such an expert would ensure that the expert opinion was generated from a single foundation of written instructions pursuant to the Rules and should engage with the necessary integers of opinion and considerations directing the determination of the current disputes in this proceeding.
Neither party would be foreclosed from identifying in the joint letter of instruction their respective contentions for consideration by the expert (r 7.13(5)). Upon production of the opinion, each would have the capacity to clarify aspects of the opinion in writing pursuant r 7.26, or to have a conference pursuant to r 7.25. The single expert could be cross-examined at the hearing. Further, subject to obtaining leave, an application could be made to adduce evidence other than from a single expert as to the law of Country B by way of r 7.08. These processes ensure that any significant issue in this proceeding will not be foreclosed from effective challenge, the interests of justice would not be compromised, while the objects and purposes of the Act and Rules are implemented, ensuring that all potentially relevant evidence will be capable of being adduced.
For all of the above reasons, the relief of the husband and the wife to adduce evidence from their own expert will be dismissed. Orders will be made to facilitate the appointment of a single expert in the law of Country B.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 February 2025