Hillier and Wooton - [2016] FamCA 217

FAMILY COURT OF AUSTRALIA

HILLIER & WOOTON

[2016] FamCA 217

FAMILY LAW – FINANCIAL – Application for leave to adduce evidence from an adversarial expert – Leave granted – The experts are to confer, prepare a joint statement and give oral evidence concurrently.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT:

Mr Hillier

RESPONDENT:

Ms Wooton

FILE NUMBER:

CAC

2423

2007

DATE DELIVERED:

4 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton, SC

SOLICITOR FOR THE APPLICANT:

Somerville Legal

COUNSEL FOR THE RESPONDENT:

Mr Kearney, SC

SOLICITOR FOR THE RESPONDENT:

Pigdon Norgate Family Lawyers

Orders

I mark the letter from Pigdon Norgate to the court (together with its enclosures) dated 31 March 2016 as Exhibit 13.
Leave be granted to the respondent husband to adduce and rely upon the evidence contained in the affidavit of Dr B sworn 21 March 2016 at the final hearing of this matter.
Dr C and Dr B confer within a period of 21 days. The expert witnesses are to comply with rule 15.69(3) Family Law Rules 2004 (Cth) with a joint statement to be prepared and forwarded electronically to my associate and the parties on or before 1 May 2016.
I note that Dr C in his email of 25 March 2016 indicated that he would be greatly assisted by being provided clarity as to what questions or issues the experts were to confer and produce a joint statement about. In that regard the lawyers for the parties should draw the experts’ attention to comments made at [30] of these reasons.
Pending further order Dr C will continue to fulfil the role as a single expert witness.
In the event the wife wishes to further argue interim order 5 should be varied, she may seek to relist the matter in which circumstances arrangements should be made to have Dr C available electronically so that he can put his position in response to any argument the wife wishes to make.
The single expert and the adversarial expert are to give oral evidence concurrently.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 2423 of 2007

Mr Hillier

Applicant

And

Ms Wooton

Respondent

REASONS FOR JUDGMENT

The husband filed an Amended Application in a Case on 21 March 2016 seeking the following orders:
1.Leave be granted to the respondent to adduce and rely upon the evidence contained in the affidavit of Dr B sworn 21 March 2016 at the final hearing of this matter.
2.Dr B and Dr C participate in a conference by 15 April 2016 and provide a joint statement by 29 April 2016.
At the final hearing, the wife seeks an order that a binding financial agreement that…

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 Hillier and Wooton

Details

AGLC: Hillier and Wooton [2016] FamCA 217
Case: [2016] FamCA 217
Decision Date: 4 April 2016

CaseChat Overview and Summary

In the matter of *Hillier and Wooton*, heard before Watts J, the dispute concerned the adducing of evidence and the role of expert witnesses in family law proceedings. The respondent husband sought leave to rely on an affidavit sworn by Dr B, and directions were given regarding a conference between two expert witnesses, Dr C and Dr B, to prepare a joint statement.

The court was required to determine whether to grant leave for the respondent husband to adduce the evidence contained in Dr B's affidavit. Further, the court needed to establish the process for the expert witnesses to confer, prepare a joint statement, and provide oral evidence, specifically addressing the scope of their conference and the potential for the wife to seek variation of existing orders concerning the single expert witness.

Watts J granted leave for the respondent husband to rely on Dr B's affidavit. The court directed Dr C and Dr B to confer within 21 days and provide a joint statement by 1 May 2016, noting that the lawyers for the parties should clarify the specific questions or issues for the experts' conference, drawing attention to comments made at paragraph [30] of the reasons. Dr C was to continue as the single expert witness, and the wife was given the option to relist the matter if she wished to argue for a variation of this interim order, with arrangements to be made for Dr C to be available electronically. Finally, the single expert and the adversarial expert were ordered to give oral evidence concurrently.

Orders

Orders of the court

I mark the letter from Pigdon Norgate to the court (together with its enclosures) dated 31 March 2016 as Exhibit 13.

Leave be granted to the respondent husband to adduce and rely upon the evidence contained in the affidavit of Dr B sworn 21 March 2016 at the final hearing of this matter.

Dr C and Dr B confer within a period of 21 days. The expert witnesses are to comply with rule 15.69(3) Family Law Rules 2004 (Cth) with a joint statement to be prepared and forwarded electronically to my associate and the parties on or before 1 May 2016.

I note that Dr C in his email of 25 March 2016 indicated that he would be greatly assisted by being provided clarity as to what questions or issues the experts were to confer and produce a joint statement about. In that regard the lawyers for the parties should draw the experts’ attention to comments made at [30] of these reasons.

Pending further order Dr C will continue to fulfil the role as a single expert witness.

In the event the wife wishes to further argue interim order 5 should be varied, she may seek to relist the matter in which circumstances arrangements should be made to have Dr C available electronically so that he can put his position in response to any argument the wife wishes to make.

The single expert and the adversarial expert are to give oral evidence concurrently.

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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