Arata & Rex (No 2)
[2024] FedCFamC1F 93
•14 February 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Arata & Rex (No 2) [2024] FedCFamC1F 93
File number(s): LEC 250 of 2021 Judgment of: HOGAN J Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – order made for updated valuation report of matrimonial property – s 102NA of the Family Law Act 1975 (Cth) order discharged Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Re F: Litigants in Person Guidelines (2001) FLC 93-072 Division: First Instance Number of paragraphs: 42 Date of hearing: 14 February 2024 Place: Brisbane Solicitor for the Applicant: Burgess Family Law Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
LEC 250 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARATA
Applicant
AND: MS REX
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Mr B of C Company be appointed a Single Expert valuer (“Single Expert valuer”) for the purpose of preparing an updated valuation of D Street, Town E in the State of New South Wales (“Town E property”).
2.The costs of the Single Expert valuer for preparing the valuation report be borne by the Applicant in the first instance, with the sharing of those costs as between the parties to be determined at the Final Hearing.
3.The parties do all acts and things to facilitate preparation by the Single Expert valuer of the valuation report at the earliest time including but not limited to the Respondent permitting and facilitating access for the Single Expert valuer to the Town E property forthwith upon a request being made by him.
4.The Applicant’s solicitor have leave to provide to the Single expert valuer a copy of this Order.
AND IT IS FURTHER ORDERED THAT:
5.Order 1 of the Order made by Justice Baumann on 10 March 2023 (as amended on 14 March 2023) is discharged.
6.The matter is listed for mention at 1.30 pm on Thursday, 15 February 2024.
7.All parties and any witness in the proceedings are prohibited from recording the proceedings or any part of them.
AND IT IS NOTED THAT:
A.The Court today provided the Respondent with an explanation about process and procedure in discharge of the obligations imposed by Re F: Litigants in Person Guidelines (2001) FLC 93-072.
B.Any recording of the proceedings or any part of them by a party to the same, a party’s legal representatives or any witness called in the proceedings in contravention of Order 7 will involve a flagrant challenge to the authority of the Court pursuant to s 112AP(1)(b) of the Family Law Act 1975 (Cth) and will render the person responsible liable for punishment for contempt of Court.
C.Any recording of the proceedings or any part of them will contravene Rule 15.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which provides, amongst other things, that a person must not record by electronic or mechanical means:
a.a hearing or part of a hearing; or
b.a trial or part of a trial; or
c.an attendance with a family consultant; or
d.a person who is in Court premises,
and that a person comments an offence if that person contravenes subrule (1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
D.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
E.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Arata & Rex has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
APPLICANT’S APPLICATION SEEKING AN UPDATED SINGLE EXPERT WITNESS VALUATION REPORT
On 21 March 2023, Baumann J made orders by consent in terms which included, in summary, that Mr B of C Company be appointed as a single expert valuer for the purpose of preparing the valuation of real property situated at D Street, Town E, New South Wales (which I will refer to as “the Town E Property” or “the property”).
Baumann J’s orders, as I say, made by consent, included orders to facilitate the preparation of the valuation of the property. The orders provide for the Applicant to bear the costs of the valuation at first instance and the issue of the sharing of the costs as between the parties to be determined at the final hearing. It requires the parties to do all things to facilitate the preparation of a valuation, including that the Respondent, Ms Rex, permit and facilitate access for him (the valuer) to the property upon a request being made by him. It also enabled the Applicant’s solicitor to give Mr B a copy of the order that his Honour made.
As I raised, at the commencement of this hearing this afternoon, with Ms Burgess (who appears on behalf of the Applicant) it seems to me that the orders in the terms made by Baumann J contain no temporal restriction: that is, reading them at face value seems to me to provide a basis for Mr B to attend and prepare a valuation. They do not limit the preparation of the valuation to one report only. They do not, for example, cease to have effect after a specified date; it has not been suggested that orders 5 through 8 of the orders made by consent by Baumann J on 21 March 2023 have been set aside. They remain operative and, as I say, they seem to me, at first blush at least, to provide a basis for the task that the Applicant seeks – namely, that Mr B, the appointed single expert witness prepare an updated report prior to the hearing, which is listed to start on Monday.
However, it is clear that Ms Rex, who now, as of very recently (namely, 9 February 2024 – last Friday) has commenced to act on her own behalf, opposes the preparation by Mr B of an updated valuation of the property. She does so for the reasons contained in her affidavit, which was sealed by the Court last night (13 February 2024); she also made some oral submissions to me today in support of her opposition to the Applicant’s position that an updated report be prepared by Mr B.
Whilst I consider Baumann J’s orders to provide a proper basis for that task to be undertaken, it seems appropriate in the circumstances that I also give consideration as to whether such orders remain appropriate.
It seems to me, given that the trial is listed to commence next week (that is, 19 February 2024) that whatever valuation that has previously been prepared by Mr B is now nearly 12 months out of date. There is nothing to say that there is a set “expiry date” for valuations; it also seems to me that, where possible, if evidence as to value as recently as possible can be obtained prior to a hearing, that is preferable.
I take into account the overarching purpose of the Rules[1] at Rule 1.04 in considering those matters prescribed by Rule 7.04 of the Rules – namely, that the overarching purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. I accept that expert evidence about the value of the property is necessary to enable me to quantify the value of the property of the parties. It is clearly an integral step in determining those orders which are just and equitable in all the circumstances. I accept that the evidence of Mr B as to the value of the property, if obtained and adduced, would go to the issue of the proper value to be accorded to it and would assist the Court in its determination of that issue – an issue which appears to be in dispute as between the Applicant and the Respondent given that the Applicant, on the basis of the information referred to in his most recent affidavit filed in support of the application, suggests that the property may have a value of somewhere between $2.45 and $2.65 million, whilst Ms Rex, the Respondent, appears to consider, based, it seems, on an earlier valuation prepared by Mr B in March 2023, that the property should be accorded a value of about $1.85 million. There is, therefore, a significant dispute, it seems, as between the parties as to the value that should be accorded to the property for the purpose of these proceedings.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
I take into account and consider that there is utility in obtaining an updated and recent valuation – particularly given the quantum of the difference between the parties’ positions and apparent, or at least ostensible, views about its potential value: that is, a difference of about $650,000 to $800,000 odd; a difference that I certainly would not regard as de minimis in these proceedings.
It is clear that the issue of valuing a property and its value falls within a substantially established area of knowledge. There is no suggestion made in any submissions to me today that there is any necessity for the Court to have a range of opinions about the value of the property and the value that will ultimately be ascribed to it.
I accept the evidence adduced on behalf of the Applicant to the effect that Mr B, the single expert witness appointed by consent consequent upon the orders made by Baumann J by consent in March of last year, can prepare an updated report in time and prior to the trial. I consider it appropriate that he do so. I note that, if his opinion changes (or, potentially, if it remains the same as that which he has previously expressed) it is open to each of the Applicant and the Respondent, if thought appropriate in their respective cases, to take up either a “change of value” position or the “maintenance of value” position with him in cross-examination during the trial.
I am not persuaded by the submission to the effect that the March 2023 value has not “expired.” Again, I emphasise that, if there are changes to an opinion that has previously been expressed, then those changes can be the subject of cross-examination if thought appropriate in the case of each of the parties.
Further, given that the Applicant will initially bear the costs of the preparation of a report by Mr B as to the most recent value – and the issue of the apportionment of responsibility for that cost will be one for me during the course of the trial – if there is no change to Mr B’s previously expressed opinion as to value, it is always open to Ms Rex, in the course of the trial and the course of her submissions, to assert that whatever costs have been incurred in the preparation of the updated report should be borne solely by the Applicant.
I am persuaded, therefore, that it is appropriate to make orders for the preparation by Mr B, the single expert witness, of an updated value of the property and that he provide that evidence prior to the trial.
So that there is no misunderstanding, I will simply make orders in terms of paragraphs 5 through 8 of the orders made by Baumann J in March of 2023, perhaps with the addition of the words “an updated valuation” to clause 5. Otherwise, the orders will issue in the terms of clauses 6, 7 and 8 inclusive of the orders made in March of last year so as to facilitate the Court having the most up-to-date evidence of value prior to the trial and to enable a proper consideration of those orders which are just and equitable in all of the circumstances.
SECTION 102NA(2) OF THE FAMILY LAW ACT 1975 (CTH)
On 10 March 2023, Baumann J made an order, until further order, that the requirements of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) would apply to any cross‑examination occurring in these proceedings on or after 11 September 2019.
The consequence of that order is that the examining party – in this case, Ms Rex – must not cross-examine the witness party – in this case, the Applicant, Mr Arata – and that such cross‑examination must be conducted by a legal practitioner acting on Ms Rex’s behalf.
I am unaware of any Reasons provided by Baumann J in support of the order made on that day (that is, 10 March 2023). Consequently, I am unaware of the bases upon which his Honour proceeded to make the order that he did.
I have today an application made on behalf of the Applicant in the proceedings, Mr Arata, for an order discharging or setting aside the order made by Baumann J to which I have referred.
I consider that, under the Rules, there is power for me to set aside that order because it is clearly an interlocutory order.
The issue has arisen in the week before this matter is listed to proceed to trial. Its listing for next week for five days commencing 19 February was as a result of orders made, I think, in October of 2023.
The matter had previously been allocated listing dates, but they were not utilised.
Until, it seems, late last week, Ms Rex had the benefit of legal representation. That legal representation was, it seems, funded by borrowings obtained from a litigation funder. I have been told, and it seems accepted, that that funding has now been extinguished – on 9 February 2024, Ms Rex filed a Notice of Address for Service.
Ms Rex opposes an order setting aside the order made by Baumann J in March of last year for the reasons she outlined in her submissions to me today. They include, in essence, that: she is concerned that she would not be afforded, appropriately, the opportunity to present her case and to have justice; she is not confident of expressing herself in the presence of the father; she has been the victim of violence perpetrated by him toward her; the impacts of that upon her are such that she is concerned she will be unable to put forward her case on her own behalf. Therefore, she seeks that the order remain.
If the order remains, the reality is that it is highly unlikely that a legal representative will be allocated to Ms Rex, given that the trial is to start next week.
If I were otherwise persuaded that it is appropriate for the order to remain in place, and if I was not otherwise persuaded to discharge it, the fact that the trial might have to be adjourned would not, of itself, persuade me that it was appropriate to make an order discharging Baumann J’s order. However, I am not of that view.
As I have already noted, the prerequisites set out in s 102NA(1)(c)(i) - (iii) are not satisfied in this case. That is, neither party has been convicted of, or is charged with, an offence involving violence or a threat of violence to the other; there is no family violence order of a final nature or even an interim order in place which applies to both of the parties here; and there is no injunction under s 68B or s 114 of the Act for the personal protection of either of the parties directed toward the other.
What there is, as is so often the case in this jurisdiction, are allegations of family violence made by one party against the other and denials of those allegations by the party accused of perpetrating family violence.
It is clear from the Applicant’s case that he refutes the assertions of violence. It is clear from Ms Rex’s case that she maintains them.
The prospect that there may be, in a case in this jurisdiction, allegations of family violence in circumstances where self-represented litigants are required to cross-examine the alleged perpetrator of such alleged violence is taken up by s 102NB of the Act.
It provides, in summary, that in such a circumstance (where s 102NA does not apply to prevent the self-represented person cross-examining the other) the Court must ensure that, during the cross-examination, there are appropriate protections for the person who is the alleged victim of family violence. In this case, that person is Ms Rex.
I am confident that I can put into place and I will ensure that, during cross-examination, there are appropriate protections for her.
I intend to set aside order 1 of the orders made by Baumann J on 10 March 2023.
As I say, there are allegations of domestic violence which are the subject of denial in this case. None of the matters set out in s 102NA(1)(c)(i) through (iii) are satisfied. I have no indication by way of Reasons delivered by Baumann J as to the basis for his Honour’s order in March 2023, although, I note that, it was clearly made as an interim order – which may suggest that it was within his Honour’s contemplation at that time that the issue of the requirement for such an order, or the necessity to make such an order, or persuasion of the circumstances sufficient to persuade of making such an order, would be issues that could be the subject of later consideration.
I also note, although it is not, in one sense, directly relevant to the decision I have arrived at to discharge Baumann J’s order (but it is relevant to what I have taken to be something of an application for an adjournment of the trial next week) that, since filing her Notice of Address for Service, Ms Rex has caused the filing of a number of affidavits. Her submissions today included that there are other documents that she foreshadows providing to the other parties to the litigation prior to the commencement of the trial next week, such as the Case Outline and, I suspect, documents which she would seek to enter into evidence during the course of the trial.
The Trial Directions made in this matter, as are routinely made, restrict parties to relying on affidavits unless leave of the Court is granted. Consequently, it is open to all parties always to seek the Court’s leave to rely on those affidavits, if any, which have been filed other than in compliance with the timetable prescribed in orders made to facilitate the hearing of a matter.
So that remains a course that is open to Ms Rex, as it is open to the Independent Children's Lawyer and to the Applicant: that is, to seek at the commencement of the trial that they be accorded leave to rely on affidavits that have not been filed in accordance with the Directions made. At that time – the appropriate time – I will, of course, hear any submissions on behalf of other parties about whether such leave should properly be granted or not. The point is that the mere delay in filing affidavit material in circumstances where leave can be sought to rely upon the same it is not a factor that persuades of the grant of an adjournment.
I am also concerned that this matter has been within the system and that these parties and child (as well as the now-adult child of these parents) have been engaged in litigation for a not insignificant period of time, given that the proceedings commenced in 2021.
Ms Rex’s submissions included, as I heard them at least, in essence, reference to the impact of the litigation upon herself and the parents’ youngest child. It is highly likely, it seems to me, that, for these parents – as for almost all parents who find themselves engaged in litigation in this Court – the impost of the same is significant. That is another reason why I consider, at this stage at least, that the matter should continue to remain listed for trial commencing next week.
It seems to me that it is certainly in the child’s best interests that the proceedings are brought to conclusion and finality as quickly as possible.
The submissions made by Ms Rex and also Ms Burgess, on behalf of the Applicant, certainly also suggest that the interests of the parties, in a financial sense, are likely to be more advanced by bringing the litigation to an end than a circumstance in which it is maintained and does not conclude.
Because of the absence of evidence about the criteria set out in s 102NA and because there are allegations of domestic violence which are the subject of dispute and because of the terms of s 102NB – which cast upon the Court the positive obligation to ensure that, during cross‑examination, there are appropriate protections for Ms Rex in place – and because I am confident that I will be able to take steps to ensure that that obligation is discharged and because of the consequences for the hearing, I am persuaded that the appropriate course in this particular matter is to make an order discharging order 1 of the order made by Baumann J on 10 March 2023 as amended 14 March 2023. For those Reasons, as well as noting the overarching purpose of the Rules and the obligation cast upon the Court to attempt to deal with matters before it as cost-effectively, efficiently and as quickly as possible, the orders will be that that order is discharged.
Consequently, the requirements imposed by s 102NA(2) of the Family Law Act 1975 (Cth) will no longer apply, but, as I have said, I will ensure that the Court discharges the positive obligation imposed upon it by s 102NB of the Act to ensure that there are appropriate protections for Ms Rex during the course of her cross-examination of the Applicant.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 14 February 2024
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