Piovene & Muhlfeld (No 2)
[2024] FedCFamC1F 491
•22 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piovene & Muhlfeld (No 2) [2024] FedCFamC1F 491
File number: SYC 4211 of 2023 Judgment of: SCHONELL J Date of judgment: 22 July 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – Assertion by the applicant that images of text messages annexed to affidavits in the respondent’s case are fake – Application for the appointment of a single expert to analyse the authenticity or otherwise of the images of text messages – Where a single expert is necessary for the issue to be resolved – Orders for the parties to appoint a single expert and prepare a joint letter of instruction – Costs reserved. Division: Division 1 First Instance Number of paragraphs: 14 Date of hearing: 22 July 2024 Place: Sydney Counsel for the Applicant: Mr Rosic Solicitor for the Applicant: Marsdens Law Group Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 4211 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PIOVENE
Applicant
AND: MS MUHLFELD
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
22 JULY 2024
THE COURT ORDERS THAT:
1.I mark as Exhibit 1 a document described as “Applicant’s Minutes of orders” and make orders in accordance with its terms as set out hereunder and as amended:
1. Definitions
a. “Relevant affidavits” should mean:
i.the affidavit of [Ms Muhlfeld] (“[…]”, namely the respondent) dated 18 March 2024, the affidavit of [Ms F] (“[…]”) dated 18 March 2024 and the affidavit of [Mr G] (“[…]”) dated 18 March 2024;
b. “Images Concerned” should mean:
i. of [Ms Muhlfeld]’s affidavit dated 18 March 2024:
1.the image exhibited in [MM]-5 (page 98 of the affidavit);
2.the image exhibited in [MM]-12 (page 128 of the affidavit);
ii. of [Ms F]’s affidavit dated 18 March 2024:
1.the image exhibited to paragraph 33 (page 9 of the affidavit);
2.the image exhibited to paragraph 38 (page 12 of the affidavit);
3.the image exhibited to paragraph 39 (page 13 of the affidavit);
4.the image exhibited to paragraph 50 (page 16 of the affidavit);
5.the image exhibited to paragraph 51 (page 17 of the affidavit);
6.the image exhibited to paragraph 52 (page 18 of the affidavit);
7.the image exhibited to paragraph 57 (page 22 of the affidavit);
8.the image exhibited to paragraph 61 (page 23 of the affidavit);
iii. of the Affidavit of [Mr G]’s affidavit dated 18 March 2024:
1.the image exhibited to paragraph 12 (page 5 of the affidavit); and
2.the image exhibited to paragraph 13 (page 6 of the affidavit).
2.That a single expert be jointly appointed by the parties pursuant to rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 for expert evidence on the Relevant Issues, and for this purpose, the following shall occur:
2.1within one (1) day after the date of these Orders, the applicant give the respondent a list of three (3) experts;
2.2within four (4) days after being given the list of experts under order 2.1 above, the respondent nominate a single expert from the list;
2.3in the event the respondent fails to nominate a single expert within the time prescribed by order 2.2 above, the applicant shall be at liberty to nominate a single expert arising from the list under order 2.1;
2.4upon the nomination of a single expert in accordance with orders 2.2 or 2.3 above, the applicant shall within one (1) day provide to the respondent a joint letter of instruction to the single expert;
2.5within one (1) day after the joint letter of instruction being provided, the respondent shall:
2.5.1 execute and return the joint letter of instruction;
2.5.2 produce to the single expert;
(a)Data extracted by [D Company] of the Respondent’s mobile device, being the data relevant to the images;
(b)Original image files of the Images concerned, the files identified as Exhibits 3, 4 and 5 of the applicant’s affidavit filed 10 July 2024;
2.5.3provide all necessary information and items to the applicant and the single expert in order to facilitate expert evidence on the Relevant Issues as requested by the single expert.
2.6within one (1) day after the joint letter of instruction being provided, the applicant shall:
2.6.1 execute and return the joint letter of instruction;
2.6.2 produce to the single expert;
(a) a copy of the sealed Relevant Affidavits;
(b)The batch of JPEG files supplied by the Respondent to the Applicant on the 31 May 2024 in relation to the Images Concerned,
2.6.3provide all necessary information and items to the applicant and the single expert in order to facilitate expert evidence on the Relevant Issues as requested by the single expert
2.7the expert shall inspect the items provided and provide a report on the following issues:
2.7.1 the authenticity of the Images Concerned.
2.7.2 Whether the Images Concerned have been altered or amended.
2.8That the respondent meet the applicant’s costs of and incidental to this application.2.8That the costs of the single expert shall be met by the applicant.
2.The parties are directed to settle a joint letter of instructions within the next 48 hours for the purposes of delivery of that letter of instructions to the single expert.
3.Leave is granted to the applicant to seek the relisting of this matter within 48 hours should a subpoena be issued by the applicant in the terms of that identified in paragraph 11 of the Respondent’s response.
4.Both parties’ costs are reserved.
THE COURT NOTES THAT
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Piovene & Muhlfeld has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
There is listed before the Court by way of final hearing the applicant’s Application that he and the respondent were in a de facto relationship. The fact of whether there was a de facto relationship is the single issue for determination at hearing. The hearing is listed before the Court for seven days to commence in approximately five weeks’ time.
Part of the respondent’s affidavit in those proceedings comprises various text messages between the respondent and witnesses in her case. I presume that the text messages have some relevance to the issues in the proceedings, not only whether or not there was a de facto relationship.
On 10 July 2024, the applicant filed an Application in a Proceeding supported by an affidavit. That affidavit comprises some 200-odd pages. The affidavit contains various assertions by the applicant, essentially casting, in fairly hyperbolic terms, some proposition that the images that form part of the annexures to the affidavit are otherwise not what they may well appear to be. The affidavit referred to various contentions advanced by the applicant and others, casting some doubt upon the accuracy, albeit in fairly imprecise terms.
The matter was listed at the Court’s direction last Thursday and on that occasion the applicant was represented by his solicitor and the respondent by her solicitor. Enquiries made with the applicant’s solicitor indicated that the contentions advanced on behalf of the applicant as to the authenticity, or indeed the accuracy of the various images, went significantly beyond the contentions advanced on the affidavit and they include, now, a new contention. Namely, that the images were fake.
On the basis of that allegation the matter was listed before the Court this morning for determination of the applicant’s affidavit.
Today, counsel appeared on behalf of the applicant. When enquiries were made of counsel, he did not resile from the position that was put to the Court by the applicant’s solicitor last Thursday.
It is, as I made clear in the course of my discussions with both the applicant’s counsel and the respondent’s solicitor, a most serious allegation going to the integrity of the respondent’s evidence before the Court.
The applicant’s Application initially sought the appointment of an expert to analyse a vast array of documents. Albeit, sensibly, the breadth of that Application was reduced quite significantly by counsel who appeared on behalf of the applicant and it primarily rests upon now an Application to seek the appointment of a single expert.
The single expert no doubt will opine as to the authenticity or otherwise of the various images annexed to the affidavits of the respondent or her witnesses.
The respondent was opposed primarily to the appointment of an expert solely on behalf of the applicant and also maintained her objection on the basis of the appointment of a single expert in circumstances, in essence, contending the applicant had not raised the foundational proposition, namely, that there was a substantial issue in the proceedings that needed the appointment of a single expert to resolve the issue. Indeed, the respondent’s solicitor indicated in her submissions that the issue as identified by the applicant was one that the Court could resolve, referring, in essence, to an analogy that the Court may well be able to determine the accuracy by reference to various farm-yard animals.
I am not satisfied that it is as reductive or as humorous as may well be suggested by the respondent’s solicitor and I am satisfied, on the basis of the representations solely by the applicant’s solicitor that the contentions are that the documents are fake, that it is a matter that requires the appointment of a single expert.
In those circumstances I am satisfied that it is necessary for this issue to be resolved.
The parties have reduced to writing, in the form of a document described as “Applicant’s Minutes of Orders”, the ambit of the issues save in relation to some amendments to the document to give the respondent sufficient time to address the question of the expertise or otherwise of the expert’s proposed by the applicant. In that respect, I note that the experts were only identified to the applicant at 9.00 pm on Friday and I am satisfied that the respondent should be given sufficient time to determine whether the experts are who or what they say they are and that there is not any conflict in relation to those experts.
Accordingly, I propose to make orders that will give effect to these reasons.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 22 July 2024
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