FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – single expert – application to discharge – whether express power in rules to do so – whether implied power to do so – held – no power, application refused.
[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.
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AGLC
Toma & Doyle [2022] FedCFamC1F 215
Case
[2022] FedCFamC1F 215
Decision Date
CaseChat Overview and Summary
In the matter of Toma v Doyle, the Federal Circuit and Family Court of Australia addressed a dispute concerning the discharge of a single expert and an application for an interim payment. The wife sought to discharge the single expert appointed in the proceedings and also requested an interim payment of $1 million as a partial property distribution. The husband opposed both applications. The central legal issues were whether the Court had the authority to discharge a single expert under the Family Law Rules and whether the Court could make an order for an interim payment of $1 million.
The Court found that the Rules did not provide an express or implied power to discharge a single expert. The Court held that the inherent jurisdiction of the Court, which is limited to controlling its own process and preventing abuse, did not extend to discharging a single expert. The Court also noted that the absence of authority on this point was explained by the general consensus that such a power was not maintainable. Consequently, the Court dismissed the wife’s application to discharge the single expert. Regarding the interim payment, the Court ordered that the husband must pay $1 million into a bank account nominated by the wife by a specified date.
In conclusion, the Court refused to discharge the single expert and dismissed the wife’s application in this regard. However, the Court did order the husband to make an interim payment of $1 million to the wife. This order is to be executed by a specified date, ensuring the wife receives the interim payment as part of the property distribution in the proceedings.
Orders
Orders of the court
SYC 2425 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS TOMA
Applicant
AND:
MR DOYLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILSON J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1. The applicant’s application to discharge the single expert is dismissed.
2. On or before 4:00pm on 6 May 2022, pursuant to s 79 of the Family Law Act, the respondent must do all acts and things and sign all documents to cause the sum of $1,000,000 be paid into a bank account nominated by the applicant in writing and be characterised as an interim partial property distribution.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
On 15 March 2022, Mr Cummings SC did not address me on the jurisdictional foundation for the order for the discharge of the single expert. CONSIDERATION OF THE APPLICATION TO DISCHARGE THE SINGLE EXPERT The Rules do not provide for the discharge of a single expert. In my view, the inherent power of this Court, possessed as it is of a statutory jurisdiction, does not extend to the making of an order for the discharge of a single expert. The limited inherent power that a justice of this Court possesses is confined, for the most part, to controlling the Court’s own process and to preventing an abuse of its process. The single expert regime prescribed in Part 7.1 of the Rules is a creature of subordinate legislation, that is to say, rules of court. Those rules are to be read and construed in the manner prescribed by the High Court in Project Blue Sky, Brooks, Taylor v Public Service Board (NSW), Southwest Water Authority v Rumble’s, Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation, Toronto Suburban Railway Co v Toronto Corporation, Minister for Lands (NSW) v Jeremias, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, TheCommonwealth v Baume, Chu Kheng Lim v Minister for Immigration, R v Berchet and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue. Nowhere in Part 7.1 does an express power exist to discharge a single expert, despite the very detailed provisions of that Part on all matters relating to single experts. Despite the intricacies of those provisions, none confer on me power to make the orders the wife seeks for the discharge of the single expert. None of the authorities on which the wife relied speak about any such power. The nearest the authorities come to the proposition the wife advances is the statement that the power to make such an order is assumed to exist. That is not borne out by the authorities there cited. No such power may be assumed to exist. As the High Court held in ReKL Tractors Ltd,[64] the absence of authority on some point is frequently explained by the fact that a general consensus exists to the effect that the point is not maintainable. [64] (1961) 106 CLR 318. Aside from the criticisms made by the husband about the absence of probative value of the wife’s evidence in support of her application concerning the single expert, in my view no foundation exists for the making of the order sought, whether under the Rules, the decided cases or the inherent jurisdiction of the Court. In those circumstances, the wife’s application in paragraphs 1 and 2 of her application in a proceeding dated 25 February 2022 is dismissed. THE WIFE’S APPLICATION FOR AN INTERIM PAYMENT OF $1 MILLION Pursuant to paragraph 3 of her application in a proceeding dated 25 February 2022, the wife sought an order for the payment to her of $1 million as an interim partial property distribution. Alternatively, the wife sought orders for the redemption of a quantity of unit shares in the C Trust in a particular manner and upon redemption, that $1 million be paid to the wife with any surplus being distributed in the manner set out in paragraph 6.