Todaro & Todaro
[2024] FedCFamC1F 841
•29 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Todaro & Todaro [2024] FedCFamC1F 841
File number: SYC 7612 of 2021 Judgment of: CAMPTON J Date of judgment: 29 November 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband filed an Application in a Proceeding seeking that the consensually appointed single expert as to real property valuations pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) be discharged and for the appointment of an alternate single expert – Where the husband submits that he has “lost faith” in the ch 7 single valuation expert due to delays the production of opinions of the subject properties – Consideration of the purpose of Pt 7.1 of the Rules – Where the husband has not established a sufficient evidentiary foundation to discharge the ch 7 single valuation expert – Application in a Proceeding dismissed. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Pt 7.1, r 7.02 and r 7.18
Division: Division 1 First Instance Number of paragraphs: 17 Date of hearing: 29 November 2024 Place: Sydney Counsel for the Applicant: Ms Petrie Solicitor for the Applicant: Gibson Howlin Lawyers Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Willis & Bowring Solicitors ORDERS
SYC 7612 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TODARO
Applicant
AND: MS TODARO
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
29 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The husband’s Application in a Proceeding filed 28 November 2024 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Todaro & Todaro has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of an Application in a Proceeding filed on 28 November 2024 by Mr Todaro (“the husband”), orders were sought discharging a single real property valuation expert appointed pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), B Valuers. The appointment was by way of consent orders made on 10 March 2022. On discharge of the single expert, the husband sought the appointment of an alternate single expert, C Valuers, together with mechanical orders facilitating the preparation of opinions from the proposed alternate single expert and as to a proportional payment of the alternate single expert's costs as between he and the wife.
The wife opposes the relief prosecuted by the husband.
BACKGROUND
The parties married in 2000 and separated on 20 September 2019. There are two children of the marriage, currently aged 22 years old and 19 years old.
The proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) were initiated on the wife filing an Initiating Application on 19 October 2021 seeking orders adjusting property between she and the husband. The husband filed a Response to an Initiating Application on 21 January 2022, seeking different orders adjusting the property of the parties.
The parties have not formally filed a balance sheet identifying and valuing their property interests. Dispute exists between the parties as to whether interests they have in trusts are amenable to adjustment pursuant to s 79 of the Act. Orders were made on 10 March 2022 progressing the obtaining of ch 7 single expert evidence as to value of 19 pieces of real property and three corporate structures. I am told that the parties prepared a collaborative balance sheet for the purposes of private mediations. The first occurred in November 2023 and the second in June 2024. That collaborative balance sheet has not been filed.
The parties are in broad agreement that their property interests are in the range of $19 million. If I understand the evidence correctly, the property portfolio has now expanded to 21 commercial and residential real properties.
The wife contends a finding as to equality of contribution up to trial, and thereafter, an adjustment of 10 per cent in her favour from the contribution finding, achieving 60 per cent of the property of the parties. The husband contends a contribution finding in his favour of 62.5 per cent and as to 37.5 per cent in favour of the wife. His contribution finding is said to be supported by his substantial direct initial contribution at the commencement of cohabitation of a significant property portfolio and by way of his post-separation contributions to the care of the now adult child of the parties and the maintenance of that property portfolio. He does not agitate for any adjustment to the contribution finding.
The husband says Mr D is the appointed as the single real property valuation expert pursuant by order made 10 March 2022. It is uncontroversial that Mr D was nominated by the husband's prior solicitor as the proposed single expert and that nomination was accepted by the wife. The husband's evidence records that Mr D was engaged by a joint letter of instruction on 28 March 2022, that he did not arrange for the inspection of the subject properties until 12 December 2022, and that his valuation opinions contained in reports trickled in from 14 March 2023 until 17 April 2023. Mr D was paid $52,304 for the preparation of his valuation reports as the ch 7 single expert.
The husband cites that mediations were delayed because valuations had not been completed. It is the husband's evidence that:
16.I have lost faith in the ability of [Mr D] to complete any updated valuations in a timely manner.
The husband has made inquiries that indicate that:
(a)Mr D will charge an additional $36,612 to update his prior reports for the purposes of the trial; and
(b)He can complete those updated reports within a seven to 10-day business period.
The husband puts into issue the estimate of time Mr D has given to complete the updated reports. He proposes alternate single experts on the discharge of Mr D. The three experts he proposes all indicate that their updated reports can be completed in a comparatively short time frame, the longest being as at March 2025, and that the costs of the alternate experts to undertake the valuations of the necessary real properties would be between $58,969 and $96,250. He proposes that if the cheapest alternate expert is selected, he would pay $46,663 to the new expert, and the wife $18,306. He contends, in those circumstances, the wife suffers no prejudice.
The wife submits that the husband does not put into issue the expertise of Mr D, nor is Mr D's methodology for the valuation of real property the subject of complaint.
The Rules
Rule 7.02 of the Rules specifies the purpose of Pt 7.1 of the Rules. It includes:
7.02 Purpose of Part 7.1
The purpose of this Part is as follows:
…
(c)to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d)to avoid unnecessary costs arising from the appointment of more than one expert witness;
Rule 7.18 provides that the expert's duty is to the Court. Rule 7.18(3) mandates that an expert witness is to conduct their function in a timely way.
While accepting the frustration expressed by the husband in the delays encountered in obtaining the first round of valuation reports from Mr D, there is insufficient foundation to find that the single expert's evidence as to the time frame to complete updated reports of the subject real properties ought not be accepted. Additionally, notwithstanding the husband's proposal to contribute a greater sum to an alternate single expert's fees, the fees to be charged by Mr D in updating his opinion is substantially less than that proposed as a minimum by an alternate expert in the range of greater than $20,000.
In all of the circumstances, I am not satisfied that the husband has established sufficient evidentiary foundation to discharge the agreed single expert confirmed by way of Court order.
The husband's Application in a Proceeding filed on 28 November 2024 will be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 5 December 2024
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