GONCHAROVA & GONCHAROV

[2020] FamCA 922

FAMILY COURT OF AUSTRALIA

GONCHAROVA & GONCHAROV [2020] FamCA 922

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of a single expert.

APPLICANT: Ms Goncharova

RESPONDENT: Mr Goncharov

FILE NUMBER: SYC 1111 of 2020

DATE DELIVERED: 2 November 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

IN CHAMBERS: 2 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Consort Family Law

SOLICITOR FOR THE RESPONDENT: Nolan Lawyers

Orders

IT IS ORDERED

1. That Order 11 made on 29 September 2020 be vacated.

2. That each party file and serve a Minute of Orders sought and an affidavit of evidence in relation to the issue of appropriate orders for the appointment of a single expert to consider the loan agreements asserted to have been entered into between the husband and family members in Country B.

3. That the application for costs as sought by each party be dismissed.

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 Goncharova & Goncharov 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 1111 of 2020

Ms Goncharova

Applicant

And

Mr Goncharov

Respondent

REASONS FOR JUDGMENT

1. This is a matter where, relevantly, one of the issues to be determined may be the nature and status of various advances alleged to have been made to the husband by family in Country B.

2. On 29 September 2020, a registrar made orders, relevantly in the following terms:

   11.The parties shall jointly instruct a suitably qualified forensic expert in Country B to forensically examine the validity of the original Loan Agreements entered into between the Respondent and his parents and for that purpose:

   a.Within 14 days of the date of these Orders the Respondent shall nominate three suitably qualified experts in Country B;

   b.Within 7 days of the nomination of the three experts by the Respondent the Applicant shall elect which nominee shall undertake the expert report;

   c.Within 7 days of the Applicant’s nomination of the Single Expert, the parties’ legal representatives shall jointly instruct the nominated Single Expert to inspect the original loan documents and prepare a report to the validity of the Loan Agreements;

   d.the Respondent Husband shall do all things necessary to ensure that his parents to make the original Loan Agreements available to the nominated expert for inspection; and

   e.the costs of the expert report is to be paid by the parties equally.

3. The registrar noted that the orders were made with the consent of the wife who is the applicant in the substantive proceedings. There does not appear, on the bench sheet, to have been any appearance on behalf of the wife.

4. The wife’s solicitor had notified the Court that she would not be available.

5. The following summary of events is taken from the written submissions on behalf of the husband.

6. On 29 September 2020, at 8.07 am, the wife’s solicitor filed written submissions and a proposed Minute of Orders.

7. The procedural hearing before the registrar commenced by telephone at 11.30 am. There was no appearance on behalf of the wife.

8. The matter was stood in the list until 12.45 pm. The solicitor for he husband emailed the solicitor for the wife notifying of the adjournment. There was no response.

9. At 12.45 pm when the matter resumed, the husband sought orders for the appointment of a single expert. The registrar directed the husband to email to her a minute of the proposed orders.

10. At 4:52 the husband’s solicitor prepared a minute and forwarded it by email to the registrar and to the wife’s solicitor. No response was received from the wife’s solicitor.

11. The registrar made orders, I infer, in the form sought by the husband.

12. The husband’s solicitor stated, in submissions: “The wife’s solicitor is copied into the said email and does not raise any objection at the time”.

13. The fact that no objection was raised does not infer consent.

14. Absent evidence of consent, I am not prepared to infer it.

15. The wife was not afforded procedural fairness. The orders were not made by consent and they should be set aside.

16. Each party will have the opportunity to properly ventilate their arguments in relation to the form of the orders to be made by filing a minute setting out the form of the orders each seeks together with an affidavit of evidence relevant to that issue.

17. In these circumstances it is not appropriate to make an order for costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2020.

Associate: 

Date:  2 November 2020