Fernand & Fernand

Case [2025] FedCFamC1F 67


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fernand & Fernand [2025] FedCFamC1F 67

File number(s): BRC 15612 of 2022
Judgment of: BAUMANN J
Date of judgment: 11 February 2025
Catchwords: FAMILY LAW – PROPERTY– Where the Applicant seeks leave to adduce further evidence in respect of real property interests – Where the proceedings are set down for final hearing  
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.08, 7.31

Cases cited:

Antonescu & Antonescu [2024] FedCFamC1F 468

Henschel & Sartre (No 3) [2023] FedCFamC1F 1081

Keevers & Keevers [2021] FedCFamC1F 338

Moretto & Cosola [2022] FedCFamC1F 433

Neales & Neales (2022) FLC 94-079

Sarka & Sarka [2024] FedCFamC1F 804

Division: Division 1 First Instance
Number of paragraphs: 25
Date of hearing: 29 January 2025
Place: Brisbane
Counsel for the Applicant: Mr T North SC
Solicitor for the Applicant: Small Myers Hughes
Counsel for the Respondent: Mr S Williams KC
Solicitor for the Respondent: Barry Nilsson  Lawyers

ORDERS

BRC 15612 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FERNAND

Applicant

AND:

MR FERNAND

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 FEBRUARY 2025

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That leave be granted for the Applicant to adduce further evidence from Mr B of C Valuers in respect of the real properties situated at:

(a)1 D Street, City E; and

(b)2 D Street, City E.

2.That pursuant to Rule 7.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Applicant and Respondent shall arrange for Mr F of G Valuers, and Mr B of C Valuers (“the expert witnesses”), to confer by no later than 9 May 2025, and each party must give to the expert witnesses a copy of the court approved brochure titled “Experts, conferences-guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia”.

3.That at the conference, the expert witnesses must:

(a)identify the issues that are agreed and not agreed;

(b)if practicable, reach agreement on any outstanding issues;

(c)identify the reasons for disagreement on any issues;

(d)identify what action (if any) may be taken to resolve any outstanding issue; and

(e)prepare a joint statement specifying the matters referred to in Order 3(a) to (d) hereof and deliver a copy of the statement to each party.

4.That the parties shall share equally in the costs of the expert conference including the cost of the Experts, with the Applicant to solely bear the cost of the adversarial expert attending such conference.

5.That the application for leave to produce adversarial expert for the property at H Street, State J, United States of America is dismissed.

6.That the costs of the Application in a Proceeding filed 29 November 2024 are reserved for the trial judge.

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

Note: This copy of the Court’s…

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AGLC
Fernand & Fernand [2025] FedCFamC1F 67
Case
[2025] FedCFamC1F 67
Decision Date

CaseChat Overview and Summary

In the case of Ms Fernand v Mr Fernand, the applicant sought leave to present additional evidence regarding real property interests, specifically pertaining to properties located in City E and State J, USA. The Federal Circuit and Family Court of Australia was tasked with deciding whether the applicant could present adversarial evidence about the property in State J. This case arose in the context of family law proceedings, where the division of property between the parties was a key issue.

The court had to determine whether the applicant was entitled to present adversarial expert evidence concerning the valuation of the property in State J. This required the court to consider the relevance and admissibility of the proposed evidence, as well as the timing and procedural fairness to both parties. The court also needed to decide if the proposed expert evidence was necessary and whether it would assist in resolving the property dispute.

The court dismissed the application to adduce adversarial evidence in respect of the State J property. The judge found that the evidence was not necessary for resolving the issues in the case and that the applicant had not demonstrated a compelling reason to allow the late introduction of this evidence. The court did, however, grant leave for the applicant to present adversarial evidence concerning two properties in City E, and ordered a conference of experts to be held to address the valuation issues.

The court further ordered that the costs of the application be reserved for the trial judge to determine. The orders also included provisions for a conference of experts for the City E properties, with the costs of the conference to be shared equally between the parties, except for the adversarial expert's attendance costs, which the applicant was to bear.

Orders

Orders of the court

BRC 15612 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FERNAND

Applicant

AND:

MR FERNAND

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

11 FEBRUARY 2025

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That leave be granted for the Applicant to adduce further evidence from Mr B of C Valuers in respect of the real properties situated at:

(a) 1 D Street, City E; and

(b) 2 D Street, City E.

2. That pursuant to Rule 7.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Applicant and Respondent shall arrange for Mr F of G Valuers, and Mr B of C Valuers (“the expert witnesses”), to confer by no later than 9 May 2025, and each party must give to the expert witnesses a copy of the court approved brochure titled “Experts, conferences-guidelines for expert witnesses and those instructing them in proceedings in the Federal Circuit and Family Court of Australia”.

3. That at the conference, the expert witnesses must:

(a) identify the issues that are agreed and not agreed;

(b) if practicable, reach agreement on any outstanding issues;

(c) identify the reasons for disagreement on any issues;

(d) identify what action (if any) may be taken to resolve any outstanding issue; and

(e) prepare a joint statement specifying the matters referred to in Order 3(a) to (d) hereof and deliver a copy of the statement to each party.

4. That the parties shall share equally in the costs of the expert conference including the cost of the Experts, with the Applicant to solely bear the cost of the adversarial expert attending such conference.

5. That the application for leave to produce adversarial expert for the property at H Street, State J, United States of America is dismissed.

6. That the costs of the Application in a Proceeding filed 29 November 2024 are reserved for the trial judge.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, the Applicant’s application to adduce adversarial evidence in respect of the State J property is dismissed.CONCLUSION The Court make orders as set out at the commencement of these Reasons permitting adversarial evidence to be adduced in respect of the two City E properties, together with orders for a conference of experts to be conducted, as set out in the Application in a Proceeding. The costs of the Application shall be reserved to me, as the trial judge.

Ratio Decidendi

Legal Principle Established

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