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…

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.

Continue reading Scafides & Petrakou

Details

AGLC: Scafides & Petrakou [2023] FedCFamC1F 62
Case: [2023] FedCFamC1F 62
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Scafides applied to adduce further evidence concerning the value of a property at B Street, Suburb C, as the parties had already obtained a single expert opinion. Ms Petrakou opposed the application. The central legal issue before the court was whether the husband's application to adduce evidence from another expert should be permitted when the processes for clarifying the opinion of the single expert had not been followed. The court examined the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and determined that the husband's application did not meet the thresholds set out in Rule 7.08(2). The husband's evidence did not show a substantial body of opinion contrary to the single expert's opinion or that the adversarial expert was aware of matters not known to the single expert. Instead, the husband's application was grounded on a difference of $150,000–$350,000, which the court considered to be a "special reason" as per Rule 7.08(2)(c).

The court found that the husband had failed to pursue the avenues for clarification of the single expert's opinion within the timeframes prescribed by the Rules. The court ordered that a conference should occur between the experts, pursuant to Rule 7.25, to clarify the single expert's opinion. The husband's application was adjourned to the first day of the trial, and the costs of the application were reserved. The court emphasized the importance of proportionality in the pre-trial process and stated that it had no concluded view on the ultimate merits of the husband's application.

Orders