Artinos & Artinos (No 2) - [2023] FedCFamC1F 37

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Artinos & Artinos (No 2) [2023] FedCFamC1F 37

File number(s): MLC 4132 of 2020

Judgment of: STRUM J

Date of judgment: 1 February 2023

Catchwords: FAMILY LAW – PROPERTY – Valuation – Single expert witness – Application for adversarial expert witness – No conference with or questions to single expert witness – Application premature – Application adjourned to allow for clarification of single expert witness’ report to be undertaken under Division 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 – Dismissal of application refused.

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

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

Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 28 November 2022

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

Daniels v Walker [2000] 1 WLR 1382

Lambard & Lambard (No 4) [2021] FamCA 47

Moretto & Cosola [2022] FedCFamC1F 433

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

Salmon and Ors & Salmon [2020] FamCAFC 134

Simonsen & Simonsen [2009] FamCA 698

Division: Division 1 First Instance

Number of paragraphs: 34

Date of hearing: 1 February 2023

Place: Melbourne

Counsel for the Applicant: Ms R. Stoikovska SC with Mr W. Newlands

Solicitor for the Applicant: Blackwood Family Lawyers

Counsel for the Respondents: Mr T. North SC with Ms T. Borger

Solicitor for the Respondents: Belleli King and Associates
ORDERS

MLC 4132 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ARTINOS

Applicant

AND:
MR ARTINOS

First Respondent

C PTY LTD

Second Respondent

order made by:

STRUM J

DATE OF ORDER:

2 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Paragraphs [2] and [3] of the husband’s Application in a Proceeding filed 20 December 2022 be adjourned for Interim Defended Hearing on 2 May 2023 at 9.30 am, not to exceed 2 hours in duration.
2.Any further affidavits and/or written submissions be filed:
(a)by the husband - by not later than 4.00 pm on 18 April 2023; and
(b)by the wife - by not later than 25 April 2023.

BY CONSENT IT IS ORDERED THAT:
3.The final hearing listed on 1 February 2023, with an estimated hearing time of 5 days, be vacated.
4.Pursuant to rule 3.03(4) of the Federal Circuit and Family Court of Australia Rules (Family Law) 2021, leave be granted to the husband to join to the proceedings:
(a)B Pty Ltd as the Third Respondent; and
(b)D Pty Ltd as the Fourth Respondent.

5.The matter be re-listed for final hearing on 16 October 2023 with an estimated hearing time of 7-10 days.
6.Within 7 days, the husband serve the Third and Fourth Respondents with:
(a)A copy of these Orders;
(b)The wife’s Response to the Application in a Proceeding filed 27 January 2023 and affidavit(s) and written submission filed in support thereof;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1F 37
Decision Date

CaseChat Overview and Summary

In Artinos & Artinos (No 2), the Federal Circuit and Family Court of Australia considered whether to grant the husband's application to adduce adversarial expert evidence in a property dispute, where single experts had already been appointed. The wife opposed the husband's application, arguing that it was premature and should be dismissed. The legal issues before the court were whether the husband's application should be adjourned or dismissed, and whether the application should be granted or refused. The court found that the husband's application in relation to the company valuation was premature, while his application in relation to the former matrimonial home was too late. The court also noted that the husband had not availed himself of the avenues provided in Division 7.1.6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to clarify the single expert witness reports. However, the court decided to grant the adjournment sought by the husband to allow those steps to be undertaken, including an extension of time to do so in relation to the disputed real property. The court emphasised the need to avoid the 'tick and flick' approach and considered the purposes and core principles of the Central Practice Direction, as well as the overarching purpose of the practice and procedure provisions referred to in section 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The court also considered the potential for an evidentiary vacuum and the importance of proportionality between the costs of expert evidence and the amounts involved in cases involving valuation evidence.

The final orders included adjourning paragraphs [2] and [3] of the husband's Application in a Proceeding for an Interim Defended Hearing, vacating the final hearing, granting leave to join additional respondents, re-listing the matter for final hearing, and setting deadlines for filing further affidavits and written submissions. The husband's application in a proceeding filed on 13 January 2023 and the husband's application in a proceeding filed on 20 December 2022 were dismissed, except for the adjourned paragraphs.

Orders