Toma & Doyle

Case [2022] FedCFamC1F 215


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Toma & Doyle [2022] FedCFamC1F 215

File number(s): SYC 2425 of 2020
Judgment of: WILSON J
Date of judgment: 8 April 2022
Catchwords: 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.  
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rules 7.07, 7.09, 7.18, 7.21, 7.22, 7.23, 7.25, 7.26, 7.28 and 7.29

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Bass & Bass [2008] FamCAFC 67

Black v Black (2008) 38 Fam LR 503

Bunbury v Fuller (1853) 156 ER 47

Cao & Trong (No 2) [2019] FamCA 941

Carr v Western Australia (2007) 232 CLR 138

Chen & Chen and Anor (No. 3) (2020) 63 Fam LR 448

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

Commissioner of State Revenue v Kimiora (2016) 309 FLR 277

Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297

Dieter & Dieter [2011] FamCAFC 82

DJL v Central Authority (2000) 201 CLR 226

DMW v CGW (1982) 151 CLR 491

Danell & Saller (2015) 54 Fam LR 416

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562

Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398

Gabel & Yardley (2008) 40 Fam LR 66

Grassby v The Queen (1989) 168 CLR 1

Hazeldell Ltd v Commonwealth (1924) 34 CLR 442

Honeysett v R (2014) 253 CLR 122

In the Marriage of Zschokke (1996) 20 Fam LR 766

In the Marriage of Yunghanns (1999) 24 Fam LR 400

Jackson v Sterling Industries Ltd (1987) 162 CLR 612

Jago v District Court of New South Wales (1989) 168 CLR 23

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Karjala & Gallard [2020] FamCA 110

Keevers & Keevers [2021] FedCCamC1F 338

Kennon v Spry (2000) 204 CLR 158

King & King [2014] FCCA 163

KL Tractors Ltd (1961) 106 CLR 318

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Marsh v Marsh [2011] FamCA 193

Marvel v Marvel (2010) 43 Fam LR 348

Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322

Northern Territory v Collins (2008) 235 CLR 619

Norton & Locke (2013) 50 Fam LR 517

Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq) (2000) 99 FCR 554

Old UGC Inc v Industrial Relations Commission of New South Wales (2006) 225 CLR 274

Payne & Payne [2009] FamCA 1005

Peacock v Newtown Marrickville and General Cooperative Building Society No 4 Ltd (1943) 67 CLR 25

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435

Polland…

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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.