SALAMAT & SOURI

[2018] FamCA 1152

FAMILY COURT OF AUSTRALIA

SALAMAT & SOURI [2018] FamCA 1152

FAMILY LAW – PRACTICE AND PROCEDURE – Expert evidence – where orders are made for the appointment of a single expert witness to give expert evidence with respect to overseas divorce and other related matters – where the wife nominated three experts and the husband selected one such expert – where the parties have had difficulties instructing the single expert and the trial is imminent – where the wife now seeks the appointment of a single expert witness based in Australia – qualifications considered – orders for the appointment of Associate Professor C as the single expert witness

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 15.45

APPLICANT: Ms Salamat

RESPONDENT: Mr Souri

FILE NUMBER: MLC 1710 of 2016

DATE DELIVERED: 6 July 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 6 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Salamanca

SOLICITOR FOR THE APPLICANT: Gold Stone Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Duckett

SOLICITOR FOR THE RESPONDENT: Chebib Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to r 15.45 of the Family Law Rules 2004 (Cth) and for the purposes of paragraph 10 of the orders made 26 March 2018 Dr C be appointed as single expert.

2. The time for the wife to file and serve her affidavit in reply pursuant to paragraph 6 of the orders made 26 March 2018 be extended to close of business this day.

3. The wife’s costs of and incidental to her Application in a Case filed 28 June 2018 be reserved.

4. The wife’s Application in a Case filed 28 June 2017 be otherwise 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 Salamat & Souri 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 MELBOURNE

FILE NUMBER: MLC 1710 of 2016

MS SALAMAT

Applicant

And

MR SOURI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter is listed for a final hearing before Justice Austin on 3 September 2018 and listed for mention before me today in order to ensure its readiness for trial.  On 28 June 2018, in anticipation of the mention before me this day, the wife filed an Application in a Case in which she seeks the appointment of Dr C as the single expert pursuant to the orders made by Justice Johns on 26 March 2018.  On that date her Honour ordered that the parties do all acts and things necessary to appoint and instruct such single expert as may be agreed, and in default of agreement the single expert chosen by the respondent by 14 May 2018 from a list of three suitably qualified experts nominated by the applicant by 30 April 2018 to report as to:

   (a) The process of obtaining a divorce in Iran; 

   (b) The types of divorce granted in Iran;

   (c) The process of relinquishing claim for dowry in Iran; and

   (d) The content and impact of Iranian Passport Law 1973. 

2. The wife relies upon an Affidavit of her solicitor which was similarly filed on 28 June 2018.  There is no Affidavit in response to that, nor is there any response to the application. In that Affidavit, Mr Stone deposes that he conducted enquiries in order to identify who might be suitable and available to act as the single expert pursuant to the order made by Justice Johns.  In doing so, on 13 April 2018 he forwarded an email to Associate Professor D of the Law School at F University enquiring as to whether she would be agreeable to be appointed as the single expert. He wrote to her having read an article she had written in a journal.

3. On 20 April 2018, Associate Professor D replied to this email declining to be appointed, but suggesting that he contact her colleague, Dr C, and providing Mr Stone with his email address. On 20 April 2018, Mr Stone sent Dr C an email in which he indicated he had been given his details by Associate Professor D and set out what he was requiring by way of a single expert witness. The email was also enquiring as to whether Dr C would be in a position to provide the necessary evidence, whether he would agree to being nominated as a single expert witness, and whether, if he considered himself not able to give that evidence, he could recommend two or three experts in the field who might be in a position to give the necessary evidence. 

4. Dr C, again via email, responded on 24 April 2018 and advised that the issues raised were within his expertise and that he was prepared to be appointed as the single expert witness.  He also ultimately provided some other names, one of whom is an attorney practising in City B and the other in City E.  Those three names were then provided as required by the orders to the solicitors for the husband.  From those nominated, the solicitor for the husband selected Mr L. 

5. What followed,  and it is deposed to by Mr Stone,  was correspondence passing between solicitors for the wife and the husband, and I will describe such correspondence as being with respect to issues arising as to the translation of the letter of instructions and what was intended by that letter of instructions. As a result of which, on 7 June 2018 Mr Stone emailed the husband’s solicitors and said as follows:

“Although I note that your client now accepts that the translated letter is accurate, the delay occasioned by his earlier claim to the contrary demonstrates the difficulties associated with a non-English speaking single expert witness, not to mention one who is overseas.  My view is that the single expert should be C who is resident in Australia and is an English speaker, are you agreeable to his appointment in lieu of Mr G?”

1. Mr Stone then deposes that he sent a follow-up email to the husband’s solicitor on 27 June 2018, but that at the date of swearing his Affidavit he had not received a response to his email of 7 June 2018.  He also deposes that he has continued to make enquiries of legal practitioners and academics within Australia who may be prepared to act as a single expert in these proceedings.  To date, Dr C is the only person who has indicated that he is agreeable to being appointed. 

2. The purpose of the Family Law Rules 2004 Cth (“the Rules”) is clear. The main purpose of the Rules is ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court, that is reasonable in the circumstances of the case. To achieve the main purpose, the Court applies these rules in a way that deals with each case fairly, justly and in a timely manner, encourages parties to negotiate a settlement if appropriate, is proportionate to the issues in a case and their complexity and the likely costs of the case, promotes the saving of costs, gives an appropriate share of the Court’s resources to a case taking into account the needs of other cases, and promotes family relationships after resolution of the dispute where possible, although that may have limited relevance in this case.

3. The difficulty I see is that we are now approximately eight weeks out from a trial. The very process of instructing the single expert selected by the husband in Iran was not straightforward. The process now would require the letter to be sent, a report to be prepared requiring translation, and questions, if there are questions of the single expert, to be given to the single expert, they will require translation, as will his answers.  Given the difficulty with the process of translation of the letter of instruction, I am left with little confidence that it will be a straightforward process, and I am concerned that could frustrate the trial. 

4. It was submitted on behalf of the husband that the questions or the issues identified in the orders made by Justice Johns order on 26 March 2018 could have been clearer.  I note however, and it is put that these orders were not made by consent, there was no application for leave to appeal against that order, in particular, or any of the orders.  The other objection is that it would be preferable to have a practising lawyer rather than an academic give the necessary expert evidence. However, that objection as to Dr C’s qualifications was made for the first time this morning. 

5. I have been provided with a printout, which I assume is from the H University website, of Associate Professor C’s qualifications.  He has a Bachelor of Laws, Master of Criminal Law and Criminology, Master of Laws and a PhD.

6. He would appear to have significant experience with respect to various aspects of the law, including Islamic law and the law of the Middle East.  If there is a challenge to his qualifications, that can be made by way of questions and, if necessary, cross-examination. 

7. I am satisfied that in order to provide a timely resolution of this matter, limiting the possible costs of doing so, that Associate Professor C should be appointed as the single expert.  He speaks English and this will avoid the possibility of a dispute over the translation of either his report, or any questions addressed to him, or answers he may give to those questions.  It will also, in my view, facilitate the evidence during the course of the hearing. In all of the circumstances, I propose to accede to the application made by the wife.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 July 2018.

Associate: 

Date:  13 March 2020