Demetriou and Demetriou - [2019] FamCA 625

FAMILY COURT OF AUSTRALIA

DEMETRIOU & DEMETRIOU

[2019] FamCA 625

FAMILY LAW – PRACTICE AND PROCEDURE – where the parties consented to the appointment of a single expert under the Family Law Rules 2004 (Cth) for the purpose of a joint valuation in respect of real property – where the husband obtained an adversarial expert report a few days before trial– where the husband filed an application two days before the commencement of the trial – where the husband pressed for a conference to take place between the single expert witness and the adversarial witness pursuant to Rule 15.69B of the Family Law Rules 2004 (Cth) – where the husband argued that pursuant to Rule 15.49(2)(a) and (c) of the Family Law Rules 2004 (Cth) the adversarial report would likely be tendered and evidence from the expert could be adduced – facts distinguished from Lister & Lister (2015) 52 FamLR 174 – alternative procedure available to submit questions to the single expert under Rule 15.65 the Family Law Rules 2004 (Cth) – husband’s application was dismissed.

Family Law Rules 2004 (Cth) rr. 1.12, 15.49, 15.64A, 15.64B, 15.65, 15.68

Lister & Lister (2015) 52 Fam LR 174
Padnall & Padnall (No. 3) [2014] FamCA 904

APPLICANT:

Mr Demetriou

RESPONDENT:

Ms Demetriou

INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Lawyers

FILE NUMBER:

SYC

2580

2017

DATE DELIVERED:

4 September 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

2 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton SC

SOLICITOR FOR THE APPLICANT:

Mills Oakley

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Rowlandson & Co Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scarlett

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Tiyce Lawyers

Orders

The Applicant Husband’s Application in a Case, filed 29 August 2019, be hereby dismissed.
Leave be granted to the Applicant Husband, pursuant to Rule 15.65 of the Family Law Rules 2004 (Cth) to submit questions to the single expert witness, N Group, in accordance with that rule, NOTING that the time limit of 21 days in under Rule 15.65(1)(b) is hereby dispensed with.
I DIRECT that any such questions be submitted by 4:00pm on 5 September 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2580 of 2017

Mr Demetriou

Applicant

And

Ms Demetriou

Respondent

REASONS FOR JUDGMENT

This judgment is being delivered orally. When settled, additional references to factual matters,…

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: [2019] FamCA 625
Decision Date: 4 September 2019

CaseChat Overview and Summary

In the matter of *Demetriou and Demetriou*, Harper J of the Family Court of Australia considered an application by the Applicant Husband concerning questions to be put to a single expert witness. The core of the dispute revolved around the Applicant Husband's desire to submit questions to the expert, N Group, and the procedural limitations that might apply.

The primary legal issue before the Court was whether the Applicant Husband should be granted leave to submit questions to the single expert witness, and specifically, whether the time limit prescribed by Rule 15.65(1)(b) of the *Family Law Rules 2004* (Cth) should be dispensed with. This rule ordinarily requires such questions to be submitted within 21 days of the expert's report being provided.

Harper J reasoned that while the general rule imposes a time limit, the Court retains a discretion to dispense with such limitations in appropriate circumstances. The Court exercised this discretion, granting leave to the Applicant Husband to submit questions to N Group. This decision was made notwithstanding the expiry of the usual 21-day period, indicating a focus on ensuring a fair process for the parties involved in the litigation.

Consequently, the Court ordered that the Applicant Husband's Application in a Case, filed on 29 August 2019, be dismissed. However, leave was granted pursuant to Rule 15.65 of the *Family Law Rules 2004* (Cth) for the Applicant Husband to submit questions to the single expert witness, N Group, with the time limit of 21 days being dispensed with. The Court directed that any such questions were to be submitted by 4:00 pm on 5 September 2019.

Orders

Orders of the court

The Applicant Husband’s Application in a Case, filed 29 August 2019, be hereby dismissed.

Leave be granted to the Applicant Husband, pursuant to Rule 15.65 of the Family Law Rules 2004 (Cth) to submit questions to the single expert witness, N Group, in accordance with that rule, NOTING that the time limit of 21 days in under Rule 15.65(1)(b) is hereby dispensed with.

I DIRECT that any such questions be submitted by 4:00pm on 5 September 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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