FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Esparza & Esparza (No 2) [2025] FedCFamC2F 509
File number(s): NCC 3537 of 2020 Judgment of: JUDGE SUTHERS Date of judgment: 23 April 2025 Catchwords: FAMILY LAW- property- interlocutory hearing -where dispute as to whether material provided to single expert witness should be considered – dispute concerning two ‘classes’ of document – applicant to bear onus of informing single expert witness - spontaneous oral applications for disclosure found to be procedurally unfair - costs reserved Legislation: Evidence Act 1995 (Cth) s 55
Family Law Act 1975 (Cth) Part VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Chapter 6, rr 6.01, 6.02, 6.06, 6.17, 6.42, 7.19
Cases cited: Ewart v Royds (1954) 72 WN (NSW) 58
Frigger v Trenfield (No 8) [2021] FCA 569
Suzlon Energy Ltd v Bangad (No 2) [2011] FCA 1152; (2011) 198 FCR 1
Division: Division 2 Family Law Number of paragraphs: 39 Date of hearing: 17 April 2025 Place: Newcastle Solicitor for the Applicant Powe & White Family Lawyers Counsel for the Respondent Mr Duane Solicitor for the Respondent Priest Legal ORDERS
NCC 3537 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ESPARZA
ApplicantAND: MR ESPARZA
Respondent
ORDER MADE BY:
JUDGE SUTHERS
DATE OF ORDER:
23 APRIL 2025
THE COURT DIRECTS THAT:
1.The spontaneous oral applications of both parties for directions to be made to address the other party’s alleged non-disclosure are dismissed.
2.At their cost, the applicant is to forthwith notify Ms B (‘the single expert witness’) that the four-page correspondence from C Pty Ltd addressed to “To Whom in (sic) may concern” and dated 26 July 2021 is not permitted to be read and/or to be considered by the single expert witness for the purposes of producing their prospective expert report.
3.At their cost, the applicant is to do all acts and things and sign all necessary documents to have the single expert witness forthwith remove and destroy the above document from the Client Portal to which the parties and the single expert witness have access to.
4.At their cost, the applicant is to forthwith provide a copy of these directions to the single expert witness.
5.Each party’s costs of the interlocutory hearing on 17 April 2025 are reserved for determination after finalisation of the substantive proceeding.
6.The competing written and/or interlocutory applications of both parties are otherwise dismissed.
THE COURT NOTES THAT:
A.The three-day trial is confirmed to commence at 10:00am on Monday 12 May 2025.
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)…
Continue reading Esparza & Esparza (No 2)
Sign in free to access the full text
- AGLC
- Esparza & Esparza (No 2) [2025] FedCFamC2F 509
- Case
- [2025] FedCFamC2F 509
- Decision Date
CaseChat Overview and Summary
In its reasoning, the court dismissed the applicant's spontaneous oral applications for directions to address the respondent's alleged non-disclosure, deeming them procedurally unfair. The court held that the onus was on the applicant to inform the single expert witness of the documents that were not to be considered. The court further directed that the applicant notify the single expert witness of a specific four-page correspondence that was not to be read or considered for the purposes of producing their prospective expert report. Additionally, the applicant was ordered to ensure the document was removed and destroyed from the Client Portal, and to provide a copy of the court's directions to the single expert witness, all at their own cost. The court reserved the costs of the interlocutory hearing for determination after the finalisation of the substantive proceeding.
The court's final orders included dismissing the spontaneous oral applications of both parties for directions regarding non-disclosure, instructing the applicant to notify the single expert witness of the non-permissible document and to remove and destroy it, and reserving the costs of the interlocutory hearing. The trial was confirmed to commence on 12 May 2025.
Orders
Orders of the court
NCC 3537 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ESPARZA
Applicant
AND:
MR ESPARZA
Respondent
ORDER MADE BY:
JUDGE SUTHERS
DATE OF ORDER:
23 APRIL 2025
THE COURT DIRECTS THAT:
1. The spontaneous oral applications of both parties for directions to be made to address the other party’s alleged non-disclosure are dismissed.
2. At their cost, the applicant is to forthwith notify Ms B (‘the single expert witness’) that the four-page correspondence from C Pty Ltd addressed to “To Whom in (sic) may concern” and dated 26 July 2021 is not permitted to be read and/or to be considered by the single expert witness for the purposes of producing their prospective expert report.
3. At their cost, the applicant is to do all acts and things and sign all necessary documents to have the single expert witness forthwith remove and destroy the above document from the Client Portal to which the parties and the single expert witness have access to.
4. At their cost, the applicant is to forthwith provide a copy of these directions to the single expert witness.
5. Each party’s costs of the interlocutory hearing on 17 April 2025 are reserved for determination after finalisation of the substantive proceeding.
6. The competing written and/or interlocutory applications of both parties are otherwise dismissed.
THE COURT NOTES THAT:
A. The three-day trial is confirmed to commence at 10:00am on Monday 12 May 2025.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.