Carros & Carros - [2023] FedCFamC2F 181

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carros & Carros [2023] FedCFamC2F 181

File number(s): MLC 3767 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 7 February 2023

Catchwords: FAMILY LAW – interim defended hearing – application for adversarial witness – questions not asked of single expert witness – application refused – leave not required to depose a treating doctor – order for costs made.

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.08, 7.25, 7.26, 7.27

Cases cited: Neales & Neales (2022) FLC 94-079

Division: Division 2 Family Law

Number of paragraphs: 38

Date of hearing: 7 February 2023

Place: Melbourne

Solicitor for the Applicant: Lampe Family Lawyers

Solicitor for the Respondent: Greg Murphy Legal
ORDERS

MLC 3767 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARROS

Applicant

AND:
MS CARROS

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

7 FEBRUARY 2023

THE COURT ORDERS THAT:
1.The Wife’s application for the appointment of an adversarial witness concerning the business known as Company B be and is dismissed.
2.The time for the Wife to deliver written questions to the single expert witness, Mr D, concerning the value of Company B as provided in rule 7.26(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) be and is extended to 4:00pm on 14 February 2023.
3.The single expert witness, Mr D, is requested to provide short answers to the questions posed by the Wife pursuant to the previous order on or before 4:00pm on 7 March 2023.
4.The fees of Mr D in dealing with and answering the questions be and are at the expense of the Wife in the first instance subject to any further order.
5.The Wife’s application for a single expert witness in regard to her medical condition be and is dismissed.
6.On or before 4:00pm on 24 February 2023 the Wife make, file and serve any report to be relied upon at final hearing from a treating medical practitioner in accordance with rule 7.01(1(a)) of the Rules.
7.The issue of whether any report from a treating medical practitioner can be relied upon at final hearing, having been filed and served, will be determined at final hearing.
8.The Wife pay the Husband’s costs for this hearing fixed in the sum of $2000 on or before 4:00pm on 14 March 2023.

AND THE COURT NOTES THAT:
A.The Husband complains of prejudice due to the lateness of the treating medical practitioner report.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but…

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.

Continue reading Carros & Carros

Details

AGLC: Carros & Carros [2023] FedCFamC2F 181
Case: [2023] FedCFamC2F 181
Decision Date

CaseChat Overview and Summary

In the matter of Carros & Carros, the Federal Circuit and Family Court of Australia (Division 2) addressed several critical issues in a hearing concerning the division of assets and health-related evidence in a family law dispute. The court was required to decide on the Wife's application for adversarial witness evidence concerning the valuation of a business, the admissibility of an expert report regarding her health, and whether to make any costs orders. The court found that the Wife's application for an adversarial witness to provide an alternative expert opinion on the business valuation was not justified, as the existing single expert report adequately addressed the concerns raised. The court also determined that the Wife did not require leave to file an expert report concerning her health, as evidence from a treating doctor is exempt under the relevant rules. Regarding costs, the court ordered the Wife to pay the Husband's costs for the hearing, considering the conduct of the parties and the financial circumstances involved.

The court's reasoning highlighted the importance of adhering to the procedural rules governing expert evidence in family law matters. The court underscored that the Rules provide a clear framework for seeking clarification or challenging expert evidence, and that the application for adversarial evidence should be a last resort. The decision also emphasized the need for proportionality in the expense and effort required to obtain additional evidence, particularly in cases where the asset pool is relatively modest. The court's order for the Wife to pay the Husband's costs reflected the unnecessary nature of the application, given the available procedural options.

Orders