FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Volkov & Volkova (No 2) [2023] FedCFamC1F 671
File number(s): SYC 4256 of 2021 Judgment of: ALTOBELLI J Date of judgment: 3 August 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks leave to rely on the evidence of an additional expert witness with an alternative view – Where rr 7.08(2)(a) and (c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) apply – The father’s application is granted. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.08 Cases cited: Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 3 August 2023 Place: Sydney Counsel for the Applicant: Ms Lawson Solicitor for the Applicant: Sexton Family Law Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Swaab Attorneys Counsel for the Independent Children's Lawyer: Mr Kelly Solicitor for the Independent Children's Lawyer: Mason Mia & Associates-Solicitors & Advocates 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:
ALTOBELLI J
DATE OF ORDER:
3 AUGUST 2023
THE COURT ORDERS THAT:
1.I make Orders 2–5 in the Applicant father’s (“the father”) Application in a Proceeding filed 24 July 2023, namely:
(a)Pursuant to rule 7.08(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the father be granted leave to rely upon the affidavit of Dr B, sworn 24 July 2023 in relation to the detection of synthetic androgens in hair samples of the father;
(b)That the legal representatives for the father serve forthwith a copy of the affidavit of Dr B upon Dr C, Pharmacologist and Forensic Toxicologist, of D Consulting;
(c)Pursuant to Rule 7.31 of the Rules, Dr B and Dr C confer with each other forthwith in relation to the contents of their respective reports, and any further matters that they, or either of them, may consider relevant, and identify between them the issues that are agreed and not agreed, including the reason for disagreement on any issue, with respect to the contents of their respective reports; and
(d)By no later than 9 August 2023, Dr B and Dr C prepare and provide to each party a joint statement specifying the matters upon which they agree and any matters upon which they do not agree, including a summary of reasoning in respect of the latter, and what action (if any) may be taken to resolve any outstanding issues.
2.The matter is stood over to the final hearing on 14 August 2023.
3.The costs of this application are reserved to the final hearing.
THE COURT NOTES THAT:
A.The father has agreed to pay the additional costs of the expert Dr C arising out of the making of these orders.
Note: The form of the order is subject to…
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- Volkov & Volkova (No 2) [2023] FedCFamC1F 671
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- [2023] FedCFamC1F 671
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CaseChat Overview and Summary
The legal issue before the court was whether the father should be granted leave to rely on the evidence of an additional expert witness, given the existing body of expert evidence, particularly in light of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court considered whether there was a substantial body of contrary opinion that was necessary for determining the issue, and whether there was another special reason to permit the evidence.
Justice Altobelli concluded that the father's application should be granted. The court found that there was a substantial body of contrary opinion to the single expert's opinion, and that the contrary opinion was necessary for determining the issue of the father's steroid use. The court also found that there was another special reason for adducing evidence from another expert witness, particularly in light of the father's physical examination and the potential for absorption of steroids through skin contact rather than ingestion. The court ordered that the father be granted leave to rely on Dr B's affidavit, and that Dr B and Dr C, the existing expert, confer and prepare a joint statement outlining areas of agreement and disagreement. The matter was stood over to the final hearing, and the costs of the application were reserved to the final hearing.
Orders
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Background
Background to the litigation
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