Smith and Smith (No 2) - [2009] FamCA 1223

FAMILY COURT OF AUSTRALIA

SMITH & SMITH (NO. 2)

[2009] FamCA 1223

FAMILY LAW – PROPERTY – application by the wife seeking a partial property settlement order – consideration of the principles in Harris and Harris (1993) FLC 92-378 – where these principles are not satisfied – where the majority of the expenses to be paid from the funds sought are child support issues – application dismissed

FAMILY LAW – EVIDENCE – expert evidence – application by the husband to adduce adversarial evidence pursuant to rule 15.49 – where a single expert has been appointed – where questions have been put to the single expert – whether there is a substantial body of opinion contrary to the opinion of the single expert – where there is no disagreement between the valuers as to the appropriate methodology – whether there are matters of which the single expert was not aware – the husband has not satisfied the requirements of rule 15.49(2) – application dismissed

Family Law Rules 2004 (Cth) rr 15.42, 15.49 & 15.52

Harris and Harris (1993) FLC 92-378
Gemmell and Gemell [2009] FamCA 29

APPLICANT:

Mr Smith

RESPONDENT:

Ms Smith

FILE NUMBER:

ADC

3585

2007

DATE DELIVERED:

1 May 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

1 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Berman

SOLICITOR FOR THE APPLICANT:

Caldicott & Co

COUNSEL FOR THE RESPONDENT:

Mr B McQuade

SOLICITOR FOR THE RESPONDENT:

David Fidler & Co

Orders

That paragraphs 1 and 2 of the Application in a Case filed by the wife on 31 March 2009 be dismissed.
That the Application in a Case filed by the wife on 31 March 2009 be dismissed and removed from the active pending cases list.
That the Application in a Case filed by the husband on 2 April 2009 be dismissed and removed from the active pending cases list.
That the time for the filing and serving of Mr C’s updated valuation report be extended to 30 April 2009.
That the time for the filing and serving of Mr K’s valuation report be extended to 4 May 2009.

IT IS NOTED that publication of this judgment under the pseudonym Smith & Smith is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3585 of 2007

MR SMITH

Applicant

And

MS SMITH

Respondent

EX TEMPORE REASONS

In this matter I in effect have two issues before me now. One arises out of the application filed by the wife on 31 March 2009 and the other arises out of the application filed by the husband on 2 April 2009. I initially considered both of these applications on 9 April 2009. Unfortunately, I ran out of time to conclude the matter and I adjourned it to today. I did, though, reach the point on 9 April 2009 of dismissing paragraph 3 of the wife's application of 31 March 2009, but what was adjourned to today and…

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 Smith and Smith (No 2)

Details

AGLC: Smith and Smith (No 2) [2009] FamCA 1223
Case: [2009] FamCA 1223
Decision Date: 1 May 2009

CaseChat Overview and Summary

In *Smith and Smith (No 2)*, Strickland J considered applications by both the wife and the husband concerning property settlement and the adducing of adversarial evidence, respectively. The wife sought a partial property settlement order, while the husband sought to introduce adversarial evidence concerning a single expert's report.

The court was required to determine whether the wife's application for a partial property settlement satisfied the principles established in *Harris v Harris*, and whether the husband had met the requirements of rule 15.49 of the Family Law Rules 2004 to adduce adversarial evidence in relation to a single expert appointed in the proceedings.

Regarding the wife's application, Strickland J found that the principles in *Harris v Harris* were not satisfied, noting that the majority of the expenses to be paid from the funds sought related to child support matters, which were not the subject of the property settlement application. Consequently, the wife's application was dismissed. In relation to the husband's application, the court determined that the husband had not satisfied the requirements of rule 15.49(2), as there was no substantial body of opinion contrary to the single expert's opinion, nor were there matters of which the single expert was unaware, and no disagreement regarding the appropriate valuation methodology. Therefore, the husband's application to adduce adversarial evidence was also dismissed.

The court ordered the dismissal of paragraphs 1 and 2 of the wife's application, and the wife's entire application filed on 31 March 2009. The husband's application filed on 2 April 2009 was also dismissed. The court also granted extensions of time for the filing and serving of updated valuation reports by Mr C and Mr K.

Orders

Orders of the court

That paragraphs 1 and 2 of the Application in a Case filed by the wife on 31 March 2009 be dismissed.

That the Application in a Case filed by the wife on 31 March 2009 be dismissed and removed from the active pending cases list.

That the Application in a Case filed by the husband on 2 April 2009 be dismissed and removed from the active pending cases list.

That the time for the filing and serving of Mr C’s updated valuation report be extended to 30 April 2009.

That the time for the filing and serving of Mr K’s valuation report be extended to 4 May 2009.

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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