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 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
(Revised from Transcript)ALTOBELLI J:
This matter comes before me today in the following context: it is listed for hearing before me for five days commencing Monday, 14 August 2023, which is Monday week. By way of an Application in a Proceeding filed 25 July 2023, the applicant father (“the father”) seeks leave to appoint another expert witness, and the orders that he seeks specifically are Orders 2, 3, 4 and 5 of the said application. By way of a Response to an Application in a Proceeding filed 2 August, that is, yesterday, the respondent mother (“the mother”) asks for that order to be discharged. The substantive proceedings are parenting and property.
There is an abundance of expert evidence already before the Court, and the question is really about the adequacy of that, having regard to the issues that the Court has to determine. I observe that, firstly, a Family Report has been prepared by Ms E. By way of very brief summary, the issue of the father’s use of steroids is a central one in her report, and the recommendations that she makes are largely contingent on the Court’s findings about that. There is a Single Joint Expert report of Dr C. Whilst it is expressed in appropriately contingent terms, it is a report that seems to suggest that the drug tests undertaken by the father, namely, hair follicle tests which showed positive for steroids, were most likely the result of the father’s use of steroids.
The father seeks to rely on a report and affidavit of a Dr B. In summary, and by no means doing justice to this report, there are two differentiating features between Dr B’s report and Dr C’s report. Those two differentiating factors are that Dr B conducted a physical examination of the father, and part of his assessment is based on that. Secondly, Dr C expresses an opinion that the positive tests may be explained by reference to absorption of the steroids as a result of the father having skin contact with steroid users in the course of his work.
A particular version of the same issue came before the learned Deputy Chief Justice at the time that a single joint expert report was ordered. I have the benefit of the learned Deputy Chief Justice’s reasons for judgment as well as the orders that his Honour made. I am satisfied on the authorities that no res judicata is created by his Honour’s judgment (Elmi & Munro (2019) FLC 93-912) Even so, I think a Court would be loath to make a contrary finding, particularly so close to the commencement of the final hearing of this matter. I am satisfied that, as persuasive as the Deputy Chief Justice’s reasons are, I should not consider them as an obstacle to dealing with this matter afresh on the basis of the evidence before me.
I am satisfied, for the purposes of r 7.08 (2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), that there is a substantial body of opinion contrary to any opinion given by the single expert, and the contrary opinion is, or may be necessary for, determining the issue. The issue of the father’s steroid use is central to this case and has probably been central to this case for some time. The Court would be assisted by this evidence. It is possible that the issue of the physical examination of the father becomes a significant one. It is accepted that it was not within Dr C’s expertise as a toxicologist to have provided the same. I think it is also potentially significant and a differentiating factor from the Deputy Chief Justice’s reasons that the father tested positive after his Honour made orders.
Pausing for a moment and applying the test of logic and common sense, it would be contrary to this Court’s experience – indeed, it would be almost illogical – that the father, who was clearly on notice of the significance of the issue of his steroid use, would then again engage in steroid use at a time when he was under intense scrutiny by way of drug tests. It beggars belief, but I accept that, even in my own experience, it has happened. But it makes plausible the hypothesis that the positive testing was attributable to something other than use, including, for example, absorption rather than ingestion. It is simply a hypothesis that I believe needs to be explored, and not just for the benefit of the child, in this case.
Possibly this is an issue that needs to be explored in a case because of the broader potential interest. Accordingly, and recognising that these very short ex-tempore reasons do not do justice to the issues raised or the submissions made by both counsel, I am satisfied that, the provisions of both rr 7.08(2)(a) and (c) of the Rules apply, and, specifically, that there is another special reason for adducing evidence from another expert witness in this case. In that regard, it could well be that this alternate hypothesis needs to be explored in the context of a contested hearing, where findings are made.
Accordingly, I make Orders 2, 3, 4 and 5 of the father’s Application in a Proceeding filed 25 July 2023.
I reserve the question of today’s costs.
I note that the father has agreed to pay any additional costs of the expert Dr C arising out of the making of these orders. I stand the matter over to the commencement of the hearing on 14 August 2023.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 3 August 2023
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