Burge & Burge - [2015] FamCA 178

FAMILY COURT OF AUSTRALIA

BURGE & BURGE

[2015] FamCA 178

FAMILY LAW – PROPERTY – Final – Where the parties propose property orders be made with the consent of each party – Where it is ordered that the parties equally share the cost of the expert witness attending Court to give evidence

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Burge

RESPONDENT:

Mr Burge

FILE NUMBER:

BRC

5514

2012

DATE DELIVERED:

10 March 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

10 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor

SOLICITOR FOR THE APPLICANT:

Carswell & Company

THE RESPONDENT:

In Person

Orders

IT IS ORDERED BY CONSENT THAT:

Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.
All outstanding applications be otherwise dismissed and removed from the pending cases list.

IT IS FURTHER ORDERED THAT:

Each party be equally responsible for the $450.00 fee for Mr B’s attendance to give oral evidence at the trial of these proceedings.

IT IS DIRECTED THAT:

The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

The wife retain as her sole property to the exclusion of the husband:
a.The balance proceeds of sale of the former matrimonial home held in the trust account of Carswell & Company solicitors (together with accretions , if any)
b.Her superannuation interest in Sunsuper
c.All the personal effects, furniture and household goods, motor vehicle, in her possession at the date of these orders
d.All banking and other accounts in her name.
The husband retain as his sole property to the exclusion of the wife:
a.All the personal effects, furniture and household goods, motor vehicle, in his possession at the date of these orders
b.All banking and other accounts in his name.
The parties will each be solely responsible for any liability in that party’s name.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burge & Burge has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5514 of 2012

Ms Burge

Applicant

And

Mr Burge

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This was to be the trial of property settlement proceedings between these parties, in circumstances where they married in 1993 and separated on a final basis on 24 June 2011. Their divorce was pronounced on 11 October 2012. There are two now adult children of the relationship: a daughter now aged 21 years and a son now aged 18 years.
The central focus of the property proceedings, in circumstances where there was little other in the way of capital held by the parties or either of them in terms of interests in property, was the husband’s receipt of an invalidity benefit by virtue of his former role with the Public Service. In the course of the proceedings when they were in the Federal Circuit Court, an order was made on 17 April 2013 that B Forensics be appointed to value the respondent husband’s (“the husband”) “superannuation interest held with the Australian Public Service and any entitlements provided by the relevant Department.
An order was made for the applicant wife (“the wife”) to be responsible for the payment of the whole of the costs of that valuation, and nothing submitted to me suggests there should be any disturbance of that order. The case as presented involved Mr B being the first witness called. That follows an order that I made on 15 December 2014 requiring the husband to give notice and make all necessary arrangements for the single expert Mr B to give evidence at the trial of these proceedings.
There has been, unfortunately, a variety of errors attending both the instructions to Mr B as expert and, as it seems to me, the opinions he expressed in the report he presented to the Court. First and foremost, it would seem that the Commonwealth Superannuation Corporation issued information to the wife’s solicitors on or about 25 October 2012 suggesting or, in fact, expressing that the husband was a “member” of the Superannuation and Benefits Scheme and was receiving an annual pension under that Scheme. I note that in the family law information provided it was suggested that this was a superannuation interest at least insofar as the information provided stated in the negative to the question, “Is the superannuation interest unsplittable?”
Second, it would seem that Mr B was unaware until, it seems, yesterday that he had, in fact, been appointed the single expert witness pursuant to the terms of the order earlier referred to made in the Federal Circuit Court.
The parties have ultimately reached agreement, having had the benefit of

Mr B’s oral evidence, in circumstances where the wife no longer pursued a case to suggest that the benefit that the husband was receiving was a superannuation interest.
I interpolate here that, on Mr B’s evidence, the preliminary view I formed and expressed prior to the adjournment of the matter was that it was unlikely on his evidence that the relevant interest could be regarded as a superannuation interest which thus rendered otiose his valuation of that interest as contained in his report.
In fairness to Mr B, the document he received as part of his instructions included the documents from the Commonwealth Superannuation Corporation which led to Mr B’s assumption that it was a pension in issue and that it was thus a superannuation interest within the meaning of the Family Law Act 1975 (“the Act”). It was only when, in the course of his evidence,

Mr B had clarification of the nature of the benefit received, partly provided by me and partly provided by the husband in his cross-examination of Mr B, that Mr B seemed to accept that it was not a superannuation interest in issue.
I should say here that the orders that the parties have been able to agree upon otherwise are, in the circumstances of this case, I am satisfied, just and equitable on the basis that the orders provide for the wife to retain the modest remaining balance of proceeds of sale of the former matrimonial home and otherwise her interest, which is modest, in Sunsuper and chattels and the like. Likewise, the husband is to retain his chattels and the like and, obviously, his benefit received by way of an invalidity benefit remains untouched.
The only issue the Court is left to determine against the above background is the responsibility for the $450 fee Mr B identified as his fee for attending Court for the purpose of giving evidence. The husband’s essential contention is that, in circumstances where the wife is receiving the balance proceeds of sale of the former matrimonial home in an amount of about $8,000-odd and that it is not his fault or responsibility that what has occurred in relation to Mr B’s report, he ought not be responsible for the cost.
Rule 15.47 of the Family Law Rules 2004 (Cth) (“the Rules”) contains the general provision that each party ought be equally liable for the fees of an expert when a single expert is engaged. I have already noted that an order has already been made for the wife to be solely responsible for the costs of the expert report, and the $450 amount relates only to Mr B’s attendance at the trial today.
Rule 15.65 of the Rules provides for a party seeking to clarify the report of a single expert witness to ask questions of the single expert under that rule. There is also provision in r 15.64(b) of the Rules for arrangements to be made for a conference to be held with an expert witness for the purpose of clarifying the report. Whilst the husband suggests that he attempted to contact

Mr B by telephone, it was, as it seems to me, open for him to ask questions of the single expert witness in writing in accordance with the Rules. I am not in this context assessing fault, but simply pointing out that there were things that might have been done on both sides to obviate the difficulties that have been encountered with respect to the expert evidence of Mr B. In the end, it seems to me that the Court was assisted by Mr B’s evidence, to the extent that there would have been a need in any event, as it seems to me, for there to be some expert evidence one way or the other as to the nature of the benefits received by the husband and whether they had any value and were in the nature of property or could be treated as property within the meaning of the Act. I have earlier referred to the order I made for the husband to make arrangements for Mr B to be present at Court, which followed a directions hearing that was had in which it seemed the husband was keen to have Mr B give evidence in the sense of giving the husband the opportunity to confront Mr B with his approach to the relevant issues.
Balancing the competing considerations, I see no reason to disturb the effect of the rule to which I have referred that each party should be equally liable with respect to the $450 fee sought to be charged by Mr B. I note that in the usual course a party who subpoenas a witness is responsible for the reasonable expenses of that witness, and in fact here it was the husband - albeit pursuant to my order - who subpoenaed Mr B to give evidence.
I therefore make orders by consent in terms of the draft that has been signed by each of the parties and is now initialled by me and placed with the file. And I further order that each party be equally responsible for the $450 fee for

Mr B’s attendance to give oral evidence at the trial.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 March 2015.

Associate:

Date: 10 March 2015