Minke & Minke

[2024] FedCFamC1F 130

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Minke & Minke [2024] FedCFamC1F 130

File number(s):

SYC 9122 of 2022

Judgment of:

WILSON J

Date of judgment:

5 March 2024

Catchwords:

 FAMILY LAW – PROPERTY – husband’s application to appoint an adversarial witness – application dismissed.  

Legislation:

Family Law Act 1975 s 79(4)(a)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ss 7.08(2)(a), 7.08(2)(b), 7.08(2)(c)

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Honeysett v The Queen (2014) 253 CLR 122

Jabour v Jabour (2019) 59 Fam LR 475

Lang v The Queen [2023] HCA 29

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Toma & Doyle [2022] FedCFamC1F 215

Verdon v Verdon (2020) 62 FamLR 573

Woodcock & Woodcock (No. 5) [2023] FedCFamC1F 894

Division:

Division 1 First Instance

Number of paragraphs:

17

Date of last submission/s:

28 February 2024

Date of hearing:

5 March 2024

Place:

Melbourne

Counsel for the Applicant:

Mr Richardson SC

Solicitors for the Applicant:

Barkus Doolan Winning

Counsel for the Respondent:

Mr Todd

Solicitors for the Respondent: 

Walter & Elliott Family Lawyers

ORDERS

SYC 9122 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MINKE

Applicant

AND:

MR MINKE

Respondent

ORDER MADE BY:	WILSON J
DATE OF ORDER:	5 MARCH 2024

THE COURT ORDERS THAT –

1.The husband’s application in a proceeding filed 28 February 2024 is dismissed.

2.The costs of an incidental to the husband’s application are reserved.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

WILSON J

INTRODUCTION

1. Many months ago I fixed this proceeding for trial in the Major Complex Financial Proceedings List ("MCFPL") commencing on Monday 18 March 2024, just under a fortnight away.

2. On Monday 4 March, the husband's application in a proceeding filed 28 February 2024 was heard before me.  Consistent with the philosophy of case management for cases in the MCFPL requiring urgent applications to be dealt with urgently, I heard the husband's application promptly particularly in circumstances in which the fate of his application may bear upon the trial date. 

3. A single expert has provided a report about real estate valuations in respect of real property at Suburb B in the State of New South Wales. 

4. The husband's application in a proceeding related to the appointment of another person as an expert.

5. To understand the rationale behind the husband's application brought in his 28 February 2024 application in a proceeding, it is necessary to narrate the factual context. A single expert has attributed a current value to the Suburb B property.  According to the husband, that property was valued at a significantly more modest sum in 2014.  So the husband contended, substantial renovations were undertaken so as to derive the present value of the property.  The husband has asserted that activity associated with the renovations was performed by or is otherwise attributable to mainly one person.  According to the husband's counsel who appeared before me yesterday, photographs and plans of the property in its unrenovated state exist which can be used so as to attribute a value to the property in 2014 in its then unrenovated state.  The husband presently wants an order authorising a new expert to enter the Suburb B property with a view to making observations about the property and taking photographs.

6. According to the husband's counsel, a decision will be later made about whether the proposed new expert will actually make a report because any such report will depend on the conclusions the proposed new expert reaches about valuations once he –

   (a)enters the property and makes a visual examination of it, especially the nature, quality and extent of the renovations;

   (b)compares the property in its current form against his assessment of the value of the property in 2014 in an unrenovated state; and

   (c)examines plans and photographs depicting the dwelling in its unrenovated state.

7. Both parties agreed that in this litigation a global approach is to be taken to the pool of assets under consideration and that the ratio in Jabour v Jabour[1] was applicable requiring all myriad of contributions of the parties to be considered. Both parties also agreed that the assessment of contributions is not a mathematical exercise, as has been stated repeatedly by authorities binding upon me.

   [1] (2019) 59 Fam LR 475.

8. It seems that the husband intends to advance an argument to the effect that the person principally associated with supervising and orchestrating the renovations should be accorded some recognition in the assessment of contributions. Precisely how or in what manner that goes beyond the improvement of property mentioned in section 79(4)(a) of the Family Law Act was not stated. 

9. It was said that the proposed new evidence would, in reality, take the form of adversarial evidence thereby enlivening the operation of rule 7.08(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. While referrable to the precursor to rule 7.08(2) in its current emanation, in Verdon v Verdon[2] I addressed the circumstances in which an adversarial witness may be permitted to later adduce evidence even where a single expert had been ordered.  In Toma & Doyle[3] I considered the interrelationship of the rules concerning single experts and the desirability of appointing them on the one hand as compared with adversarial witnesses and the circumstances in which a party may have leave to adduce evidence from an adversarial witness on the other hand. No hard and fast immutable requirement exists mandating expert evidence to be given by a single expert only. An adversarial witness may give evidence so long as one or more of the stipulations in rule 7.08(2) are satisfied, as I held in Woodcock & Woodcock (No. 5).[4]

   [2] (2020) 62 FamLR 573.

   [3] [2022] FedCFamC1F 215.

   [4] [2023] FedCFamC1F 894.

10. Counsel for the husband on this application conceded that no evidence exists at present of any of the elements by which I could be persuaded of factors enlivening rule 7.08(2)(a), (b) or (c). That probably explained why the husband limited his application presently before me to no more than obtaining the court's permission for a named person to enter the Suburb B property to make observations and to take photographs of it. He needed permission to do so.

11. The wife opposed the application, even limited as it was.  Mr Richardson SC for the wife submitted that –

    (a)an order for valuation evidence to be adduced by a single expert is presently operative;

    (b)no factual basis had been demonstrated to warrant an order being made that deviates from the single expert order already made;

    (c)the basis for the appointment of an adversarial witness had not been properly engaged as the proposed letter of instruction invites the proposed adversarial expert to engage in speculation, contrary to the gravamen as Makita (Australia) Pty Ltd v Sprowles[5], Dasreef Pty Ltd v Hawchar[6], Honeysett v The Queen[7], and Lang v The Queen[8] ; and

    (d)the operation of the rules governing expert evidence provides a timeline which will not be met having regard to the proximity of the trial of this proceeding, presently less than 14 days away. 

    [5] (2001) 52 NSWLR 705.

    [6] (2011) 243 CLR 588.

    [7] (2014) 253 CLR 122.

    [8] [2023] HCA 29.

12. Importantly, the husband did not apply to adjourn the trial of this proceeding.  It therefore became unnecessary to explore and address the observations of the High Court in Aon Risk Services Australia Limited v Australian National University.[9] 

    [9] (2009) 239 CLR 175.

13. This application was limited to a step anterior to the husband applying for leave to adduce an adversarial expert.  The husband only sought permission for a proposed adversarial expert to enter the Suburb B property with a view to making observations about it and to taking photographs.  In the absence of the wife's permission for him to do so or an order from me, the proposed expert would have no colour of right to enable him to lawfully enter upon the Suburb B property to do the things he says he needs to do. But even if I permitted the proposed expert to enter the Suburb B property, that would not lead axiomatically to an application being made for the proposed expert to adduce adversarial evidence. 

14. The husband would first need to adduce evidence pursuant to which he brought the facts of this application within the ambit of one or more of the subsets of rule 7.08(2). Things have not yet reached that state of evidentiary advancement. But even if the husband at this late stage of preparation ahead of the trial fixed for 18 March applied for leave to adduce adversarial evidence, the consequences of the grant of any such order under rule 7.08(2) would need to be addressed specifically in relation to its impact on the trial and even the fairness or otherwise of permitting the trial date to be adjourned.

15. But as I have already said, no such application is on foot. 

16. In the course of debate yesterday, Mr Richardson SC brought to my attention that other expert evidence bearing upon taxation issues may be in a state of fluidity.  No formal application was brought based on the issues canvased in relation to taxation evidence.  However, the parties need to keep steadily in mind that the trial of this proceeding is fixed for 18 March.  Preparations should be highly advanced.  The time for filing evidence is long passed.  So far there is no impact on the commencement of the trial.  No party has applied for leave to adduce evidence that is not in conformity with trial directions. In making that last observation the parties should not regard me as having formed any views at all about applications brought prior to trial.  All such applications must be considered on their merits by application of the correct legal principles.  If brought I shall consider any such application with that in mind. 

17. Turning now to the disposition of the application in paragraph five of the husband's application in a proceeding filed 28 February 2024, I dismiss it and reserve costs of an and incidental to it.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Wilson.

Associate:
Dated: 7 March 2024