Althuis & Paz (No 2)

Case [2025] FedCFamC1F 344

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Althuis & Paz (No 2) [2025] FedCFamC1F 344

File number: SYC 4879 of 2024
Judgment of: CAMPTON J
Date of judgment: 22 May 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks, in addition to the adjournment of a hearing, leave for the possibility to file an Application in a Proceeding to adduce evidence from an expert witness other than the single expert – Where the adjournment of competing relief as to forum is sought in the shadow of pending the provision of answers to questions in writing directed to the single expert witness as to Country B law pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the husband opposes the relief sought – Where the wife does not adequately particularise the basis of her complaint as to the opinion of the single expert witness – Where challenge to the opinion of the single expert will not be foreclosed by the refusal of the wife’s application for leave to file an Application in a Proceeding – Where an adjournment affords procedural fairness – Application for leave to file an Application in a Proceeding dismissed – Application to adjourn allowed – Costs reserved.
Legislation:

Family Law Act 1975 (Cth) ss 79, 95, 96

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Pt 7.1, rr 1.04, 7.02, 7.10, 7.11, 7.26

Cases cited: Althuis & Paz [2025] FedCFamC1F 88
Division: Division 1 First Instance
Number of paragraphs: 36
Date of hearing: 22 May 2025
Place: Sydney
Counsel for the Applicant: Mr Stapleton
Solicitor for the Applicant: Ramsden Family Law
Counsel for the Respondent: Ms Hughes
Solicitor for the Respondent: Galt Kenway Family Law

ORDERS

SYC 4879 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ALTHUIS

Applicant
AND:

MR PAZ

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

22 MAY 2025

THE COURT ORDERS THAT:

1.The relief sought in paragraphs 2 to 7 of the Application in a Proceeding of the wife filed 20 May 2025 is dismissed.

2.The listing of the interlocutory hearing as to forum on 4 June 2025 is vacated.

3.The interlocutory hearing of the competing relief of each of the parties as to forum is listed before Behrens J for hearing on one (1) day on 17 June 2025.

4.The husband is permitted to file and serve any amended outline of case document pursuant to the orders made on 19 February 2025 on or before 13 June 2025.

5.The time for the wife to file an outline of case pursuant to the Order 10 made on 19 February 2025 be extended to 13 June 2025.

6.Leave is granted insofar as is necessary for the wife to cross-examine the ch 7 single expert as to Country B law by Webex at the hearing on 17 June 2025, the wife to make such arrangements with the expert to…

Continue reading Althuis & Paz (No 2)

Sign in free to access the full text

Details
AGLC
Althuis & Paz (No 2) [2025] FedCFamC1F 344
Case
[2025] FedCFamC1F 344
Decision Date

CaseChat Overview and Summary

The case of Althuis & Paz (No 2) involved an application by Ms Althuis seeking various procedural orders in relation to the proceedings concerning the adjustment of property between the parties. Ms Althuis sought an adjournment of an interim hearing, the provision of answers to questions directed to the single expert, permission to file an application to adduce evidence from an adversarial expert witness, and other related relief. Mr Paz opposed the application, arguing that Ms Althuis had not adequately particularised her complaint against the single expert's opinion and that granting the relief sought would not result in a significant issue being foreclosed from effective challenge.

The court considered the relevant provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and the Full Court's consistent approach to the permission rule. The court found that Ms Althuis had not adequately particularised her complaint against the single expert's opinion, and that the challenge to the opinion would not be foreclosed by the refusal of her application for leave to file an application to adduce evidence from an adversarial expert witness. The court also noted that an adjournment would afford procedural fairness to the parties. Accordingly, the court dismissed the relief sought in paragraphs 2 to 7 of the application, but granted leave for the interlocutory hearing of the competing relief of each of the parties as to forum to be listed before Behrens J for hearing on 17 June 2025. The court also extended the time for the wife to file an outline of case and granted leave for the wife to cross-examine the single expert as to Country B law by Webex at the hearing on 17 June 2025. All costs of and incidental to the application and the response were reserved.

In summary, the court dismissed the wife's application for leave to file an application to adduce evidence from an adversarial expert witness and to adjourn the interim hearing. However, the court granted leave for the interlocutory hearing of the competing relief of each of the parties as to forum to be listed before Behrens J for hearing on 17 June 2025, extended the time for the wife to file an outline of case, and granted leave for the wife to cross-examine the single expert as to Country B law by Webex at the hearing on 17 June 2025. All costs of and incidental to the application and the response were reserved.

Orders

Orders of the court

SYC 4879 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ALTHUIS

Applicant

AND:

MR PAZ

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

22 MAY 2025

THE COURT ORDERS THAT:

1. The relief sought in paragraphs 2 to 7 of the Application in a Proceeding of the wife filed 20 May 2025 is dismissed.

2. The listing of the interlocutory hearing as to forum on 4 June 2025 is vacated.

3. The interlocutory hearing of the competing relief of each of the parties as to forum is listed before Behrens J for hearing on one (1) day on 17 June 2025.

4. The husband is permitted to file and serve any amended outline of case document pursuant to the orders made on 19 February 2025 on or before 13 June 2025.

5. The time for the wife to file an outline of case pursuant to the Order 10 made on 19 February 2025 be extended to 13 June 2025.

6. Leave is granted insofar as is necessary for the wife to cross-examine the ch 7 single expert as to Country B law by Webex at the hearing on 17 June 2025, the wife to make such arrangements with the expert to secure her availability to give evidence on that day.

THE COURT NOTES THAT:

A. The husband does not currently propose to cross-examine the expert, however that position may be reviewed.

AND THE COURT FURTHER ORDERS THAT:

7. All costs of and incidental to the Application in a Proceeding filed on 20 May 2025 and the Response thereto 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

These reasons assume familiarity with the reasons delivered on 19 February 2025 (Althuis & Paz [2025] FedCFamC1F 88).BACKGROUND To give the relief sought in the Application in a Proceeding of the wife context, the parties commenced cohabitation on or about 1 September 2009 and married in Country B in mid-2015. In early 2015, prior to marriage, they signed a pre-marital contract pursuant to the civil code in Country B. They moved to Australia in late 2015. There is one child of the relationship, X, who was born in 2019 in Australia and is currently five years old. 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. The parties separated on 22 December 2022. They were divorced in 2023 in Country B. Both the parties and the child have continued to reside in Country B. In mid-2023 the parties entered a document described as a “[Country B] Divorce Agreement” with the benefit of the advice of Country B lawyers. The agreement was notarised by way of Country B law in mid-2023. On 26 June 2024 the wife filed an Initiating Application 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”), including for the husband to transfer to her his interest in a property at E Street, Suburb D, NSW (“the Suburb D property”) jointly held by the parties 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 24 September 2024 the proceedings were transferred to this Court. In early 2025 the husband filed a summons in the Family Affairs division of the City C Court seeking 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 (file number […]). The first listing date of that summons is in late 2025. About a month later the husband commenced other proceedings in the Family Affairs division of the City C Court (file number […]) 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. On 7 February 2025, as amended on 17 February 2025, the husband filed an Application in a Proceeding in this forum seeking, inter alia, for a threshold determination as to whether these proceedings ought to be permanently stayed until after the conclusion of the first tranche proceedings pending in Country B (file number […]), or in the alternative, that these proceedings be permanently stayed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Against that background, the wife filed an Application in a Proceeding on 20 May 2025 seeking:1. That the interim hearing listed 4 June 2025 commencing 10 am for one day be adjourned.2. That the answers to the clarifying questions put to [Ms M] as single expert (pursuant to rule 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) by the [wife’s] legal representatives on 15 May 2025, be provided to the [husband’s] legal representatives as soon as practicable after receiving them if not emailed directly to them by [Ms M]3. That the [wife] file and serve any Application in a Proceeding and affidavit in support for the appointment of an adversarial witness (pursuant to rule 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) within 14 days of receipt of the clarifying questions.4. That in the alternative to Order 3 above, the answers to the clarifying questions in Order 2 above obviate the need for the [wife] to make an application to rely on an adversarial expert’s report, the [wife’s] legal representatives inform the [husband’s] legal representative and Chambers within 14 days of their receipt.5. That the [wife] be excused from filing the Case Outline as per order 10 made on 19 February 2025, given that the answers to the clarifying questions are yet to be provided by the Single expert and pending the determination of an adversarial witness report 6. The [wife’s] costs of this Application be reserved.7. Such other orders necessary for the case management of the parties’ competing applications. CONSIDERATION Dealing with the second tranche of alternative relief sought by the wife as pressed today, r 7.02(c) prescribes that, if practicable and without compromising the interests of justice, expert evidence is to be given on an issue by a single expert witness. Rule 7.10 provides that a party may seek permission to tender a report or adduce evidence from an expert witness other than a single expert witness. Rule 7.11 mandates that when considering an application for permission, the Court must take into account the purpose of Pt 7.1 of the Rules, together with:(a)The impact of the appointment on the likely cost of the proceeding;(b)The likelihood of the appointment expediting or delaying the proceeding;(c)The complexity of the issues in the proceeding;(d)Whether the evidence should be given by a single expert witness rather than an expert appointed by one party only; and(e)Whether the expert has specialised knowledge, based on the person’s training, study, or experience (r 7.11(3)). The Full Court has consistently not read down the circumstances in which there may be genuine issues in the proceedings that warrant the adducing of probative expert evidence. As such, the view often taken is that the permission rule 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.