Althuis & Paz

Case [2025] FedCFamC1F 88

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…

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AGLC
Althuis & Paz [2025] FedCFamC1F 88
Case
[2025] FedCFamC1F 88
Decision Date

CaseChat Overview and Summary

The case of Althuis & Paz involves a dispute between the husband, Mr Paz, and the wife, Ms Althuis, over property adjustment and related issues. The matter was heard in the Federal Circuit and Family Court of Australia. The primary legal issues the court had to address were whether to grant a stay of the proceedings pending the outcome of related proceedings in Country B, and whether to issue an anti-suit injunction to restrain the husband from prosecuting those proceedings in Country B. Additionally, both parties sought leave to present their own expert evidence on the operation of the law of Country B, bypassing the requirement to appoint a single expert.

The court considered the purpose of Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which aims to ensure that expert evidence is probative and does not unduly delay or increase the expense of proceedings. The court noted that the piecemeal approach taken by both parties in presenting their expert evidence had led to conflicting opinions and was not aligned with the objectives of the Rules. The court dismissed the applications for each party to adduce their own expert evidence and ordered the appointment of a single expert to provide a comprehensive opinion on the relevant issues. The matter was then listed for a hearing on 4 June 2025 to address the husband’s application for a stay and the wife’s application for an anti-suit injunction.

The court made several orders to facilitate the appointment of a single expert on the law of Country B, including the requirement for the wife to provide three expert names within 14 days, for the husband to select the expert within seven days, and for the expert to be instructed by the parties within 14 days of the appointment. Both parties were also directed to file Case Outline documents and reserve costs. The court emphasised that any issues preventing the hearing from proceeding as scheduled must be promptly communicated to the court and the other party.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.