Smyth & Smyth (No 2) - [2022] FedCFamC1F 551

Federal Circuit and Family Court of Australia
(DIVISION 1)
Smyth & Smyth (No 2) [2022] FedCFamC1F 551

File number(s): MLC 1937 of 2020

Judgment of: STRUM J

Date of judgment: 1 August 2022

Catchwords: FAMILY LAW – PROPERTY – Valuation – single expert witness – application for adversarial expert witness – no substantial body of opinion contrary to any opinion given by single expert witness – no matters known to proposed adversarial expert witness not known to single expert witness – no special reason for adducing evidence from another expert witness.

Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 67

Federal Circuit and Family court of Australia (Family Law) Rules 2021(Cth), rr 7.08, 7.02

Cases cited:
Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67

Lambard & Lambard (No. 4) [2021] FamCA 47

Macvean & Manton [2022] FedCFamC1F 376

Neales & Neales [2022] FedCFamC1A 41

Salmon and Ors &Salmon [2020] FamCAFC 134

Simonsen & Simonsen [2009] FamCA 698

Division: Division 1 First Instance

Number of paragraphs: 41

Date of hearing: 11 July 2022

Place: Melbourne

Counsel for the Applicant: Mr A. Robinson

Solicitor for the Applicant Pearsons Lawyers

Counsel for the Respondent: Mr T. Puckey QC

Solicitor for the Respondent Suke & Associates
ORDERS

MLC 1937 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SMYTH
Applicant

AND:
MR SMYTH

Respondent

order made by:

STRUM J

DATE OF ORDER:

11 JULY 2022

THE COURT ORDERS THAT:
1.Paragraphs 1, 2 ,3 of the wife’s Application in a Proceeding filed 29 June 2022 be dismissed.
2.That any corrected report by the single expert valuer, Mr F, be filed by not later than 4:00 pm on 28 July 2022.
3.The husband pay the costs of both L Solicitors and G Group in complying with the requests for production of documents (pursuant to the authorities granted by the husband) made by the wife in the first instance with the question of ultimate liability therefor to be determined after the delivery of judgment in the substantive proceedings.
4.The wife’s Application be otherwise dismissed.
5.All questions of costs of and incidental to the wife’s Application be reserved.
6.Pursuant to rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court certifies that it was reasonable to engage counsel, including Queen’s Counsel, to attend on behalf of each of the parties.

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,…

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 Smyth & Smyth (No 2)

Details

AGLC: Smyth & Smyth (No 2) [2022] FedCFamC1F 551
Case: [2022] FedCFamC1F 551
Decision Date

CaseChat Overview and Summary

The case of Smyth & Smyth (No 2) involved the wife seeking leave to adduce evidence from an adversarial expert witness on the issue of valuation, which had already been addressed by a single expert witness jointly appointed by the parties. The Federal Circuit and Family Court of Australia was tasked with deciding whether the wife's application should be granted, considering the legal framework set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The primary legal issue before the court was whether the wife should be permitted to present evidence from an adversarial expert witness on the same issue as the single expert witness. This decision hinged on whether any of the conditions specified in rule 7.08(2) of the Rules were met, which include the existence of a substantial body of contrary opinion, the adversarial expert knowing matters not known to the single expert, or there being a special reason for adducing evidence from another expert witness.

Justice Strum determined that the wife's application should be dismissed. The court found that there was no substantial body of opinion contrary to the single expert's valuation, as the differences in their methodologies were either minimal or potentially reconcilable. Furthermore, the court held that the adversarial expert did not know any material facts unknown to the single expert, and there was no special reason to appoint an additional expert. The reasoning underscored the importance of adhering to the rules to achieve just, quick, and cost-effective resolution of disputes, as well as the principle that the trial judge ultimately determines the value of assets after considering all evidence.

In conclusion, the court dismissed the wife's application and mandated that the single expert's corrected report be filed by a specified date. Additionally, the husband was ordered to pay certain costs related to document production. The court's decision emphasized the need to avoid unnecessary duplication of expert evidence and to focus on resolving disputes efficiently and fairly.

Orders