Volkov & Volkova
[2022] FedCFamC1F 952
Federal Circuit and Family Court of Australia
(DIVISION 1)
Volkov & Volkova [2022] FedCFamC1F 952
File number(s): SYC 4256 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks to engage a single expert to provide assistance to the Court in determining issues relating to the mother’s allegations of the father engaging in steroid use – Letter to be provided to single expert – Letter amended to strike out the inclusion of blood test results and an adversarial report – Application allowed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Division: Division 1 First Instance Number of paragraphs: 7 Date of hearing: 28 October 2022 Place: Sydney (via videolink) Solicitor for the Applicant: Sexton Family Lawyers Solicitor for the Respondent: Swaab Attorneys Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers ORDERS
SYC 4256 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VOLKOV
Applicant
AND: MS VOLKOVA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
1.The matter is listed for final hearing before the Honourable Justice Altobelli at 10.00 am on 19 June 2022 with an estimated hearing time of five (5) days.
2.The Joint Letter to Single Expert and attached to these orders as “Annexure A” be provided to the Single Expert as amended in accordance with the reasons.
3.The parties have liberty to apply in the event that there is any difficulty in amending the letter having regard to the reasons pronounced today.
4.No later than 21 days prior to the trial date, the Applicant file and serve:
(a)any Amended Initiating Application setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
5.No later than 14 days prior to the trial date, the Respondent file and serve:
(a)any Amended Response setting out with particularity the precise final orders sought;
(b)an updated single consolidated trial affidavit;
(c)other witness affidavits upon which they intend to rely; and
(d)in property proceedings, an updated Financial Statement.
6.No later than 7 days prior to the trial date:
(a)the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)' affidavits; and
(b)the Independent Children's Lawyer file and serve any affidavits relied upon.
7.No later than 2 days prior to the trial date, all parties are to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a)list of the material relied upon;
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(c)in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought;
(d)in a property case, a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
(i)the assets and liabilities available for division;
(ii)the value of items where the value is in dispute;
(iii)contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
(iv)relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
(v)any further factors relevant to determining a 'just and equitable' division of property.
8.Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
9.Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
10.All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
11.The parties have liberty to issue up to five (5) subpoenas in respect to the property proceedings
12.The Independent Children’s Lawyer has liberty to issue such subpoenas as he considers appropriate or as reasonably requested by the parties in respect to the parenting proceedings.
THE COURT NOTES THAT:
A.The parties, including the Independent Children’s Lawyer, have the ability to submit questions and confer with the single expert in accordance with the Rules after the receipt of the single expert’s report.
B.The parties anticipate being in a position to engage a valuer to value the former matrimonial home at a time closer to the hearing date.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Volkov & Volkova has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns the father’s application for the engaging of a single expert to provide assistance to the Court in determining issues relating to the mother’s allegations of the father engaging in steroid use. The parties are in agreement regarding the engaging of a single expert and have identified the single expert report writer. During the course of the proceedings, the parties also agreed that the cost of the single expert will be shared.
The first issue that I am required to determine is whether a letter of instruction should be sent to the expert which includes the following, as per paragraph 13 of the draft provided by the parties:
Analyse and interpret [Mr Volkov’s] blood test results and reported testosterone levels from his hair follicle test, and if deemed appropriate by the single expert, a physical examination of [Mr Volkov], and opine whether their findings support or contra-indicate steroid dependence both in the past and the present.
A further issue requiring determination is related to whether the single expert should be provided with blood test results collected on 24 November 2021, 2 February 2022, 20 April 2022, 18 July 2022 and also a medical report on detection and synthetic androgens in hair samples by Dr B dated 10 March 2022.
In this matter, I have determined that the letter of instruction to the single expert should be in the form of the proposed letter, save in so far as I do not propose that documents 9 and 10, being the blood test results, nor the report of Dr B be provided to the single expert. My reasons for excluding that material is that, firstly, the blood test results do not relate to the period of the alleged positive steroid test results and, secondly, there is a question regarding the veracity of those blood test results when the respondent has indicated she has concerns regarding the appropriate chain of custody in respect of those blood test results. Dr B, he has been engaged as what is commonly known as an adversarial expert on behalf of the father. There was no joint letter of instruction to him and there is, in those circumstances a question concerning the objectivity of his report.
My concern is that the provision of Dr B’s report, in circumstances where the validity of his conclusions are the subject of contest in the proceedings, has the potential to, in turn, undermine the opinions expressed in the single expert’s report. This is because a potential question will arise as to whether that expert report is based on inaccurate information or allegedly flawed opinions expressed by Dr B. In other words, in circumstances where the parties are involved in the expensive of engaging of a single expert, I am concerned that providing the single expert with documents that could undermine the veracity and usefulness of that report would be regrettable. On that basis, I do not propose that items 9 and 10 be included.
That takes me back to proposed paragraph 13. I propose to amend that paragraph as follows:
Analyse and interpret [Mr Volkov’s] reported testosterone level from his hair follicle tests, and opine whether their findings support or contra-indicate steroid dependence in respect to the period covered by those reported results.
In arriving at that conclusion, I am of the opinion that there is little utility in requesting the single expert to examine the physical stature of the applicant father at this point in time, in circumstances where he states that he has not been taking steroids and test results confirm that there is an absence of the presence of steroids in his system for at least 12 months. If the father was previously taking steroids, his presentation and physical stature will be, at this point in time, irrelevant to what it may have been at the relevant time that it is alleged by the mother that he was taking steroids.
Further, in circumstances where there is no current results that will be provided to the single expert indicating that the father is continuing to use steroids, I am of the view that there is little utility in requesting a single expert to opine regarding the father’s use of steroids in a period subsequent to the test results that will be provided to him. For those reasons, I direct that the letter be amended in accordance with these reasons and give the parties’ liberty to apply in the event that there is any difficulty in amending the letter having regard to these reasons.
Finally, I will note that the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) enable a party, after receipt of the report, to submit questions to the single expert and, if necessary, for the parties to confer with the single expert. I specifically note that the parties have such rights pursuant to the Rules as are set out in that respect and this decision should not be regarded as, in any way, negating or interfering with those rights.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 6 December 2022
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