Volkov & Volkova (No 2) - [2023] FedCFamC1F 671

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…

Grounds of appeal

[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.

Continue reading Volkov & Volkova (No 2)

Details

AGLC: Volkov & Volkova (No 2) [2023] FedCFamC1F 671
Case: [2023] FedCFamC1F 671
Decision Date

CaseChat Overview and Summary

In the case of Volkov & Volkova (No 2), the Federal Circuit and Family Court of Australia (Division 1) was tasked with considering the father's application to rely on an additional expert witness's opinion, specifically regarding the detection of synthetic androgens in hair samples. The application sought leave to appoint a new expert, Dr B, to provide an alternative view on the use of steroids by the father, which was a pivotal issue in the ongoing parenting and property dispute. The mother opposed the father's application, arguing that the proposed expert's evidence was unnecessary.

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