Salmon and Salmon & Ors (No 2) - [2019] FamCA 910

FAMILY COURT OF AUSTRALIA

SALMON & SALMON AND ORS (NO. 2)

[2019] FamCA 910

FAMILY LAW – EVIDENCE – Expert evidence – Interim Hearing – Where a single expert witness has previously been appointed by the court – Where the husband now seeks permission pursuant to rule 15.49 of the Family Law Rules 2004 (Cth) to rely upon another expert report in relation to the same issue – Where the husband is joined in his application by the second and third respondents – Where the application is opposed by the wife’s estate – Where the husband has not established that there is a special reason for the appointment of another expert witness – Where the application is dismissed – Where the parties are granted an extension of time in which to attend a conference with the single expert or to submit a list of questions to the single expert.

Family Law Rules 2004 (Cth), r 15.49, r 15.64B, r 15.65

Bass & Bass (2008) FLC 93-366
Royce & Donavan [2012] FamCA 168
Simonsen & Simonsen [2009] FamCA 698

APPLICANT:

Ms Salmon by way of her Personal Legal Representatives Mr Simpson and Ms Simpson

1st RESPONDENT:

Mr Salmon

2nd RESPONDENT:

B Pty Ltd ACN …

3rd RESPONDENT:

Mr C Salmon and Ms D Salmon and Mr E Salmon as trustees of the B Pty Ltd Superannuation Fund

FILE NUMBER:

BRC

10433

2015

DATE DELIVERED:

24 October 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

14 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hartley, Hartley Healy

COUNSEL FOR THE 1ST RESPONDENT:

Mr Page QC

SOLICITOR FOR THE 1ST RESPONDENT:

Williamson & Associates

COUNSEL FOR THE 2ND RESPONDENT:

Mr Galloway

SOLICITOR FOR THE 2ND RESPONDENT:

Williamson & Associates

COUNSEL FOR THE 3RD RESPONDENT:

Mr Galloway

SOLICITOR FOR THE 3RD RESPONDENT:

Williamson & Associates

Orders

Pursuant to r 15.64B of the Family Law Rules 2004 (Cth) (“the Rules”), the time for agreement about conferring with the single expert witness for the purpose of clarifying the report dated 18 July 2019 be extended to within 21 days of the date of this order.
The time for a party seeking to clarify the report dated 18 July 2019 by asking questions pursuant to r 15.65 of the Rules be extended to within 7 days after the conference held pursuant r 15.64B or, if no conference is held, within 21 days of the date of this order.
The Application in a Case filed 18 September 2019 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 Salmon & Salmon and Ors 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…

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.

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Details

Case: [2019] FamCA 910
Decision Date: 24 October 2019

CaseChat Overview and Summary

In *Salmon and Salmon & Ors (No 2)*, Carew J of the Family Court of Australia considered an application by the husband, joined by the second and third respondents, for permission to rely on a further expert report concerning an issue already addressed by a court-appointed single expert. The wife’s estate opposed this application.

The central legal issue before the court was whether the husband had established a "special reason" to justify the appointment of a second expert witness, pursuant to rule 15.49 of the *Family Law Rules 2004* (Cth), when a single expert had already been appointed by the court to report on the same matter.

Carew J dismissed the husband's application, finding that he had not demonstrated the necessary special reason to depart from the usual practice of relying on a single expert. The court reasoned that the existing expert report was intended to provide clarity on the issue, and the rules provided mechanisms for parties to seek clarification through conferences or written questions. Consequently, the court made orders extending the time for the parties to confer with the single expert or to submit questions to clarify the existing report, while dismissing the application for a new expert report.

Orders

Orders of the court

Pursuant to r 15.64B of the Family Law Rules 2004 (Cth) (“the Rules”), the time for agreement about conferring with the single expert witness for the purpose of clarifying the report dated 18 July 2019 be extended to within 21 days of the date of this order.

The time for a party seeking to clarify the report dated 18 July 2019 by asking questions pursuant to r 15.65 of the Rules be extended to within 7 days after the conference held pursuant r 15.64B or, if no conference is held, within 21 days of the date of this order.

The Application in a Case filed 18 September 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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