Antonescu & Antonescu

Case [2024] FedCFamC1F 468

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Antonescu & Antonescu [2024] FedCFamC1F 468

File number: SYC 1697 of 2023
Judgment of: CAMPTON J
Date of judgment: 15 July 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks leave to adduce expert evidence other than by a single expert evidence pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where each of the three r 7.08 factors relied upon by the husband are considered individually and by aggregate in the exercise of discretion – Weighing the failure of the husband to engage with the processes prescribed by the Rules to address concerns as to an updated opinion – Where there are flaws in the opinion sought to be adduced with leave which reduce the value and cogency of that opinion – Consideration of prejudice in the shadow of the trial – Where it is acknowledged that the Rules are to be applied flexibly to meet the interests of justice – Where refusal of the husband’s application will not foreclose the single expert opinion from effective challenge – Application in a Proceeding dismissed – Costs reserved.
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Pt 7.1, rr 7.02, 7.08, 7.25, 7.26

Cases cited:

Artinos & Artinos (No 6) [2023] FedCFamC1F 652

Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67

Byrd & Byrd (No 2) [2011] FamCA 804

Caughey & Peckham (No 4) [2024] FedCFamC1F 197

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Dimmick & Harrison [2023] FedCFamC1A 30

Moretto & Cosola [2022] FedCFamC1F 433

Neales & Neales (2022) FLC 94-079; [2022] FedCFamC1A 41

Salmon and Ors & Salmon [2020] FamCAFC 134

Simonsen & Simonsen [2009] FamCA 698

Division: Division 1 First Instance
Number of paragraphs: 51
Date of hearing: 11 July 2024
Place: Sydney
Counsel for the Applicant: Ms Dart
Solicitor for the Applicant: King Cain Solicitors
Counsel for the Respondent: Mr Weightman
Solicitor for the Respondent: Long Saad Woodbridge Lawyers

ORDERS

SYC 1697 of 2023

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

MR ANTONESCU

Applicant
AND:

MS ANTONESCU

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

15 JULY 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed 25 June 2024, save as to that determined by the orders made 11 July 2024, is dismissed.

2.The costs of the Application in a Proceeding filed 25 June 2024 and of the Response to the Application in a Proceeding filed 8 July 2024 are reserved to the trial.

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…

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AGLC
Antonescu & Antonescu [2024] FedCFamC1F 468
Case
[2024] FedCFamC1F 468
Decision Date

CaseChat Overview and Summary

In the matter of Antonescu & Antonescu, the husband sought leave to adduce expert evidence from an expert other than the single expert as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The husband’s application was dismissed by Campton J. The husband's primary contention was based on three factors outlined in Rule 7.08 of the Rules, which the court examined individually and collectively to exercise its discretion.

The legal issues before the court were whether the husband's application to adduce expert evidence other than the single expert evidence complied with the Rules and whether the application should be granted in the interests of justice. The court assessed the husband’s failure to engage with the prescribed processes under the Rules, the value and cogency of the opinion sought to be adduced, and the potential prejudice to the wife if the application were granted. The court also noted the need to apply the Rules flexibly to meet the ends of justice while ensuring the proceedings are conducted quickly, inexpensively, and efficiently.

In reaching its decision, the court highlighted that the Rules are designed to facilitate efficient proceedings and should not be a rigid constraint. The court considered that the husband's attempt to introduce evidence from another expert could prejudice the wife, particularly due to the timing of the application and the lack of clarity in the husband's expert’s opinion. The court found that the husband's insistence on his expert’s opinion despite the availability of an updated opinion from the single expert demonstrated a disregard for the prescribed pathways under the Rules. Additionally, the court found deficiencies in the husband's expert’s opinion that reduced its value and cogency, and it did not see a significant barrier to effectively challenging the single expert's opinion at trial. Thus, the application was dismissed, and the costs were reserved for the trial.

The court ordered that the application filed on 25 June 2024, save for aspects already determined by prior orders made on 11 July 2024, be dismissed. The costs of the application and the response were reserved to the trial. This decision underscores the importance of adhering to the Family Law Rules and the need to balance flexibility with the efficient administration of justice in family law proceedings.

Orders

Orders of the court

SYC 1697 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ANTONESCU

Applicant

AND:

MS ANTONESCU

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

15 JULY 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed 25 June 2024, save as to that determined by the orders made 11 July 2024, is dismissed.

2. The costs of the Application in a Proceeding filed 25 June 2024 and of the Response to the Application in a Proceeding filed 8 July 2024 are reserved to the trial.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Rules are a guide to sound forensic practice, not a judicial straight-jacket. They are meant to be applied flexibly to meet the ends of justice (Dimmick & Harrison [2023] FedCFamC1A 30). Section 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) mandates the quick, inexpensive, and efficient conduct of proceedings. Weighing these factors and in considering all of the matters contended by the husband in aggregate (Neales & Neales (2022) FLC 94-079 (“Neales”)), it is also important to keep in mind that:(a)The value as to the goodwill of the trading enterprise is broadly 5 per cent of the total value of the property of the parties as asserted by the husband; and(b)The permission to adduce evidence from Mr L in the shadow of the trial presents, as submitted by the wife, prejudice to her that cannot be easily mitigated. This would include, should the husband elect to disclose the volume of documents and information as identified earlier in these reasons to sure up the admissibility of and weight to be afforded to Mr L’s opinion, consideration of that material by way of her own expert. It cannot be assumed that absent the agreement of the single expert, the wife could adopt that expert as her own witness in the proceeding. The cost of the proceeding would be greatly increased, and the trial dates put in jeopardy, with further dates not being available until mid-2025.CONCLUSION Single expert evidence is one part of the determination of the value of the property of the parties. Ultimately, the Court determines the value of an item of the property after all the evidence has concluded. The Court will make findings of fact on the evidence to ground a finding as to value, coming to its own conclusions by applications of established valuation principles (Salmon at [41] – [42]; Neales at [58] – [59]). The husband’s failure to avail himself of the pathways in the Rules to address his concerns about the contents of the updated 2023 single expert’s report, coupled with his filing of Mr L’s affidavit prior to the single experts’ updated opinion, demonstrates that he was fixed on a course of seeking to adduce Mr L’s opinion, irrespective of the contents of the updated single expert opinion. As identified earlier in these reasons, the instructions for the updated second single expert 2023 report were markedly expanded from that grounding the first 2022 report. Each expert at all times adopted the same methodology to value the trading enterprise. There are deficiencies in the valuation objectives underscoring Mr L’s opinion and in its current evidentiary basis, reducing its value and cogency. There is real potential for prejudice to be generated if permission was achieved for it to be adduced as filed. The husband’s concern as to the capacity to test the single expert’s reasoning that he contends was not adequately explained, and to challenge his concluding opinion, are not established. I am not satisfied that the single expert opinion is foreclosed from effective challenge. The husband and the wife will have that opportunity to test the opinion at trial. There is no reason to conclude that the single expert will not consider revising his opinion, if and when, effectively tested at trial.

Ratio Decidendi

Legal Principle Established

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