Scafides & Petrakou
[2023] FedCFamC1F 62
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scafides & Petrakou [2023] FedCFamC1F 62
File number(s): SYC 1814 of 2020 Judgment of: CAMPTON J Date of judgment: 15 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application to adduce further evidence as to the value of a real property, where a single expert opinion has already been obtained pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the processes prescribed by the Rules for the clarification of an expert witness’ opinion have not yet been undertaken – Order for a conference with the single expert witness pursuant to r 7.25 of the Rules – Application adjourned. Legislation: Federal Circuit and Family Court of Australia Act (2021) (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.02, 7.08, 7.25. 7.26
Federal Circuit and Family Court of Australia Central Practice Direction – Family Law Case Management, 28 November 2022
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 15 August 2023 Place: Sydney Solicitor for the Applicant: Ms Morris, Sexton Family Law Counsel for the Respondent: Mr Richardson Solicitor for the Respondent: Sullivan Legal Solicitor for the Independent Children's Lawyer: Ms Bevan, Sarah Bevan Family Lawyers ORDERS
SYC 1814 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCAFIDES
Applicant
AND: MS PETRAKOU
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
15 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Pursuant to r 7.25 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the parties are to do all things to facilitate a conference with the single expert witness, Mr E, for the purpose of clarifying his report as to the value of the property at B Street, Suburb C, such conference to occur on or before 5.00 pm on 17 February 2023.
2.The husband’s Application in a Proceeding filed 20 January 2023 (and sealed on 23 January 2023) is adjourned to 10.00 am on 20 February 2023, being the first day of the final hearing of this matter.
3.The costs of each of the husband and the wife both of and incidental to the husband’s Application in a Proceeding filed 20 January 2023 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 Scafides & Petrakou has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
These proceedings are listed over five days for the final hearing of the parties’ parenting and property dispute before me commencing next week on 20 February 2023. The trial dates were listed and extensive trial directions made on 9 May 2022.
On 17 August 2021 the parties obtained an opinion from a real property valuer, Mr E, being a single expert witness, as to the value of their interest in the property at B Street, Suburb C (“the Suburb C property”) at $3.5 million. They obtained an updated opinion from Mr E at $3.15 million as at 19 October 2022. The husband puts into issue that updating opinion for the purposes of the trial. Mr E has provided single expert opinions as to the value of the six pieces of real properties in which the parties have an interest. No dispute exists as to his opinions as to the value of the other properties.
Further trial management orders and notations were made on 8 December 2022, relevantly to the current determination as follows:
B.The Court is advised that single expert real property valuation opinions have been obtained but each of the husband and wife require clarification of those opinions pursuant to the rules and may apply for leave to adduce further expert evidence as to real property valuation.
…
3.In so far a is necessary, leave is granted to each of the husband and wife to extend the time to seek clarification of the opinion of any single real property valuation expert pursuant to Division 7.1.6 of the rules, such clarification by way of questions to the single expert or conference with the single expert to be extended until 21 December 2022.
4.In the event either the husband or the wife proposes to seek leave to adduce evidence from an expert other than a single expert pursuant to Division 7.1.3 of the rules, then such Application in a Proceeding and affidavit in support there of shall be filed and served on or before 20 January 2023 and any Response to that Application in a Proceeding if filed, an affidavit in support thereof shall be filed and served on or before 3 February 2023.
…
6.I direct these proceedings be listed for further case management in person at 11.30am on 15 February 2023 for the purposes of confirming the readiness of the matter for trial and if ready, confirmation of the trial dates over 5 days from 20 February 2023, determining any application for leave of a party to rely on affidavits at trial filed outside that prescribed by way the trial directions made 9 May 2022 to consider any Application in a Proceeding as filed pursuant to these directions and to ascertain the wife’s position to her current child support departure relief.
On 20 January 2023 the husband filed an Application in a Proceeding pursuant to Order 4 made 8 December 2022, seeking the following orders:
1.That pursuant to Division 7 .1 .3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court grant leave to the applicant husband to adduce evidence from [Mr F] in respect of the value of the real property located at [B Street, Suburb C] NSW […] (“the [Suburb C] property”).
2. That forthwith upon the making of these Orders, the respondent wife do all acts and things to provide [Mr F] access to inspect the [Suburb C] property.
In support of his relief sought, the husband relied upon an affidavit of Mr F, another real property valuer, filed on 20 January 2023. Mr F’s affidavit records that on 22 December 2022 he received instructions from the husband by way of a letter from his solicitors to provide commentary on and to critique the single expert opinion of Mr E for the purposes of the forthcoming trial. Mr F attached to his affidavit a document entitled “Valuation Report Preliminary Critique and Commentary” dated 19 January 2023. In that document, he records that he has undertaken a ‘kerbside’ inspection of the Suburb C property and that he can prepare a valuation report as to the property before the trial if he is given access to it by 16 February 2023. Mr F opined a value of the Suburb C property to be in the range of $3.3–3.5 million as at 19 January 2023.
The wife on 3 February 2023 filed a Response to the husband’s Application in a Proceeding, seeking that it be dismissed and that the husband pay her costs of an incidental the application. She relied on her affidavit filed on 3 February 2023 in support of her Response.
Rule 7.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) specifies the purpose of Pt 7.1 of the Rules. One purpose is to ensure that, if practical and without compromising the interests of justice, expert evidence is given on an issue by one single expert witness (see r 7.02(c)). Rule 7.02(e) records another purpose is to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party if it is in the interests of justice to do so.
Rule 7.08(1) of the Rules provides that if a single expert witness has been appointed to prepare report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the Court’s permission. Rule 7.08(2) provides that the Court may allow a party to tender a report or adduce evidence from another expert witness on the same issue as the single expert witness if it is satisfied as to any of the matters set out in r 7.08(2) have application. They are that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
Mr F in his report does not take issue with many parts of the opinion of Mr E, including as to the locational aspects, surrounding developments, title, zoning services and building description of the Suburb C property. He agrees that the direct comparison methodology of valuation employed by the Mr E is appropriate.
Mr F identifies three current comparable sales being the same as those identified by Mr E, but disagrees with his analysis of those sales. He opines that, consistent with the opinion of Mr E, there are a “very limited” number of recent sales comparable to the Suburb C property, but considered that “a broader search and analysis of wider ranging sales evidence would provide support for a somewhat higher valuation figure than determined”.
The evidence relied upon by the husband in support of his Application in a Proceeding does not meet the thresholds identified in r 7.08(2), in that there is no substantial body of opinion proffered by the husband contrary to that of Mr E, and it is not a matter where Mr F as the adversarial witness knows of matters not known Mr E. The reason grounding the husband’s application must be a “special reason” as foreseen by r 7.08(2)(c). In reality, that special reason is grounded from a range of $150,000–$350,000 or approximately 7.5 per cent (being the mid‑point) difference between what Mr F describes as the “reasonable range” of opinions as to the value of the Suburb C property and that opined by Mr E.
Importantly, as identified by the wife in her affidavit filed on 3 February 2023 and recorded in the trial directions made on 8 December 2022, the Rules provide for two avenues for the clarification of single expert witness’ opinion. The first is a conference with the expert (r 7.25) and the second is by way of questions to the expert in writing (r 7.26).
In this matter it is uncontroversial that subsequent to receiving the husband’s Application in a Proceeding the wife facilitated Mr F having access to the Suburb C property on 31 January 2023. After the provision of that access, no updated report of Mr F has been served. The wife further records in her affidavit filed on 3 February 2023 her agreement for Mr F to confer with Mr E to seek a clarification of his opinion. Such conference has been informally arranged between the parties, but to date no such conference between the two valuers has occurred.
The husband has not placed evidence before the court as to why he failed or neglected to pursue the avenues for clarification of Mr E’s opinion within the timeframes prescribed by the Rules or as extended by the orders made 8 December 2022. Those timeframes have well and truly expired. That said, there is no identified prejudice to the wife should a conference be facilitated between Mr E, in which she may participate, pursuant to r 7.25(2).
I propose to order that a conference occur pursuant to r 7.25 of the Rules, and otherwise adjourn the hearing of the husband’s Application in a Proceeding filed 20 January 2023 to the first day of the trial. Such course is consistent with the Federal Circuit and Family Court of Australia Central Practice Direction – Family Law Case Management, 28 November 2022, the Federal Circuit and Family Court of Australia Act (2021) (Cth) and the Rules, in that it facilitates the just resolution of this dispute according to law and as efficiently as possible. Ultimately, as properly conceded by the wife, she suffers no identified prejudice by such course save as to costs. Solace as to costs can be adequately addressed later. What flows from the conference may probative on the hearing of the adjourned application in a proceeding or during the course of oral evidence during the trial. The matters to be engaged at the proposed conference could reduce issues at trial or refine cross-examination at trial. It is important to keep in mind for the purposes of this pre-trial process aspects of proportionality.
So that is clear I have no concluded view as to the ultimate merits of the husband’s Application in a Proceeding for leave to adduce evidence from Mr F as to the value of the Suburb C property. I am not determining today whether or not there is a “special reason” established on the evidence by the husband for adducing evidence from Mr F. If pressed after the conference, that matter will be left for resolution at the trial.
The processes identified in r 7.25 of the Rules do not provide for a joint memorandum to be produced, and I will not direct such a memorandum be produced. That will be a matter for the parties.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 15 February 2023
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