Westbrook & Westbrook

Case [2024] FedCFamC1F 434

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Westbrook & Westbrook [2024] FedCFamC1F 434

File number: SYC 5635 of 2022
Judgment of: CAMPTON J
Date of judgment: 26 June 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the proceeding was recently transferred from Division 2 on the first day of the trial after it had been listed for hearing twelve months ago – Where the foundation for the transfer to this Court was specious – Application to adduce further evidence as to the value of a real property, where a single expert opinion has already been obtained pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the husband has not made out any of the matters as identified in r 7.08 of the Rules – Application in a Proceeding dismissed – Costs reserved to trial.
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 50

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 7, Pt 7.1, rr 7.02, 7.08, 7.36
Cases cited:

Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67

Caughey & Peckham (No 4) [2024] FedCFamC1F 197

Gilford & Cavaco [2024] FedCFamC1A 55

Simonsen & Simonsen [2009] FamCA 698
Division: Division 1 First Instance
Number of paragraphs: 35
Date of hearing: 25 June 2024
Place: Sydney
Counsel for the Applicant: Mr Knackstredt
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Ms Gillies SC
Solicitor for the Respondent: Newnhams Solicitors

ORDERS

SYC 5635 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR WESTBROOK

Applicant
AND:

MS WESTBROOK

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

26 JUNE 2024

THE COURT ORDERS THAT:

1.The Application in a Proceeding of the husband filed 27 May 2024 is dismissed.

2.The costs of the Application in a Proceeding filed 27 May 2024 and the Response to the Application in a Proceeding filed 3 June 2024 be reserved to the final hearing listed to commence 15 July 2024.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 pseudonyms Westbrook & Westbrook has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

CAMPTON J:

  1. By way of…

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Westbrook & Westbrook [2024] FedCFamC1F 434
Case
[2024] FedCFamC1F 434
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CaseChat Overview and Summary

The case of Westbrook & Westbrook involved a dispute over the admissibility of expert evidence in a family law matter. The husband sought to introduce additional expert evidence regarding the valuation of a property, challenging the opinion of a single expert previously appointed by both parties. The case was transferred to Division 1 of the Federal Circuit and Family Court of Australia after initially being heard in Division 2. The husband's application to present the additional expert evidence was contested by the wife, who argued that the husband had not met the criteria for such permission as outlined in Rule 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The court examined whether the husband had established any of the conditions specified in Rule 7.08(2) of the Rules, which permit the introduction of additional expert evidence. These conditions include the existence of a substantial body of contrary opinion, the presence of unknown matters relevant to the issue, or another special reason. The husband contended that there were errors in the single expert's valuation of the property and that the valuation significantly increased without apparent justification. However, the court found that the husband's expert, Ms. B, did not possess expertise that substantially differed from the single expert, Mr. F.

In its decision, the court held that the husband had not demonstrated any of the grounds necessary to allow the additional expert evidence. The reasoning emphasised the importance of adhering to the principles set out in the Rules and previous judicial decisions, which stress that the adducing of additional expert evidence should not occur without compelling justification. The court dismissed the husband's application and reserved the costs of the application and the response to be determined at the final hearing.

Orders

Orders of the court

SYC 5635 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR WESTBROOK

Applicant

AND:

MS WESTBROOK

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

26 JUNE 2024

THE COURT ORDERS THAT:

1. The Application in a Proceeding of the husband filed 27 May 2024 is dismissed.

2. The costs of the Application in a Proceeding filed 27 May 2024 and the Response to the Application in a Proceeding filed 3 June 2024 be reserved to the final hearing listed to commence 15 July 2024.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is much that could be said about the asserted time estimate “that the matter could not be contained to less than five days” and the assertion that there may be a parenting application. At its highest, the estimate may be four days. With efficient trial management it would be contained to three days. Why the matter was not commenced and heard for the three available days allocated and if necessary, adjourned for a single fourth day, or why if adjourned it would not have priority on the next occasion, is not explained. Any suggestion that there could be a parenting amendment after transfer to Division 1 in Sydney may appear superficially plausible but is erroneous. The appellate division of this Court has determined that there is no jurisdiction to amend a s 79 cause in Division 1 to incorporate and commence a parenting cause. Any parenting application would need to be separately commenced in Division 2 (see Gilford & Cavaco [2024] FedCFamC1A 55 at [51]–[53]; s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The current judicial resources of the Sydney Registry of this Court are limited in circumstances where three judges are yet to be replaced. Directions were made yesterday listing the s 79 dispute for hearing over three days commencing on 15 July 2024 (being the same time estimate for the trial as identified in Division 2), before an interstate relief judge of this Court, in circumstances where the parties in this matter ought not to have been required to wait for a further twelve months to have the s 79 dispute heard.THE APPLICATION TO ADDUCE EXPERT EVIDENCE AS TO THE VALUE OF A REAL PROPERTY OTHER THAN BY A SINGLE EXPERT Earlier in the litigation the parties obtained opinions from a single expert witness real property valuer, Mr F, as to the value of their interest in their five real properties pursuant to Ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). That single expert opined that the value of one of those real properties, the 1 C Street property, was $4,500,000 on 14 November 2022. On 4 April 2024, the single expert was instructed to prepare updated valuations. His updated opinion as to the value of the 1 C Street property was completed on 23 April 2024, ascribing a value of the property of $7,500,000 as of 21 April 2024. The husband puts into issue the updated single expert opinion of the 1 C Street property for the purposes of the trial. The single expert’s opinions as to the current value of the remaining real property interests of the parties are not in dispute. In support of his relief sought, the husband relies upon some relevant paragraphs of his trial affidavit filed 23 May 2024, his affidavit filed 27 May 2024, the affidavit of Ms B, a real property valuer he alone instructed, filed 3 June 2024, and a tender bundle, being Exhibit 1. The husband’s affidavit annexes questions, dated 14 May 2024, directed to the single expert Mr F purportedly seeking to clarify his opinion as to the updated value of the 1 C Street property pursuant to r 7.26. The single expert’s answers to the questions, dated 3 June 2024, are contained in Exhibit 1.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 3 June 2024, the wife filed a Response to the husband’s Application in a Proceeding seeking that it be dismissed and that the husband pay her costs of, and incidental to, the Application. She relied on her affidavit filed on 3 June 2024 in support of her Response.CONSIDERATION Rule 7.02 of the Rules specifies the purpose of Pt 7.1. One purpose is to ensure that, if practical and without compromising the interests of justice, expert evidence is given on an issue by one single expert witness (see r 7.02(c)). Rule 7.02(e) records another purpose of the part is to enable a party to apply for permission to tender a report, or adduce evidence from, an expert witness appointed by that party if it is in the interests of justice to do so. Rule 7.08(1) of the Rules provides that if a single expert witness has been appointed to prepare report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the Court’s permission. Rule 7.08(2) provides that the Court may allow a party to tender a report or adduce evidence from another expert witness on the same issue as the single expert witness if it is satisfied as to any of the matters set out in r 7.08(2) have application. They are that:(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or (b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or (c)there is another special reason for adducing evidence from another expert witness. In Simonsen & Simonsen [2009] FamCA 698, Murphy J referred to the decision of the Full Court in Bass & Bass (2008) FLC 93-366 and said:12The general thrust of the Rules has been referred to by the Full Court in Bass & Bass (2008) FLC 93-366. As the court in that case made clear, the adducing of evidence from an additional expert, is not something which ought occur in the usual course, or simply by application made by a party. It simple terms, the word “special” as used in rule 15.49 has real meaning.(Emphasis added) That said, the Full Court has consistently not read down the circumstances where there are genuine issues in the proceedings that warrant the adducing of probative expert evidence. As such, the view often taken is that the permission rule must not be applied in a way that results in what may be a significant issue in the proceedings being foreclosed from effective challenge, or in a way that would compromise the interests of justice in preventing potentially relevant evidence being placed before the Court. The expertise of Ms B does not substantially differ nor exceed those of Mr F. The husband gives evidence that there were “errors” in Mr F’s valuation, including:296.On 30 November 2022, [Mr F] valued [1 C Street] at $4.5 million. On 23 April 2024, being 16 months later, Mr F valued [1 C Street] at $7.5 million. [Mr F] increased his valuation of [1 C Street] by 67%, however only increased his valuation of [1 H Street] by 19% and did not change his valuation for [2 H Street] at all. The three properties are located on the same block in [Suburb E]; they share boundary fences.297.The land values as published by the NSW Valuer General on the land tax assessments show that as [late] 2022, [1 C Street] was valued at $4.5 million. This is consistent with [Mr F’s] valuation at $4.5 million on 30 November 2022. The NSW Valuer General’s land values as at [late] 2023 value [1 C Street] at $4,710,000, being a 5% increase from the prior year. [Mr F’s] valuation as at April 2024, is $2,790,000 more than that value…298.I disagree with [Mr F’s] use of [2 C Street, Suburb E] as a comparable sale. [2 C Street] is far superior to [1 C Street]. [2 C Street] is the one and only [housing of its kind] with an unrestricted view […]. It is one of a kind and was marked as [unique] and the ‘last remaining original home in [the area].’299.There are only 5 properties on [C Street] with a comparable […] view to [2 C Street], namely the properties at [3 C Street], which are all […] north-facing properties with unobstructed views […]. Of those 5 properties, only 3 are houses […]. Of those 3 houses, only [3 C Street] is on a level block. Only [3 C Street] remains undeveloped, with the other two houses […] having had substantial renovation works.300.Our [1 C Street], while [a few] doors up, has no views. It has no […] views or any views [in any direction]. It overlooks [another building] and carpark. It does not have any development potential to achieve […] views. It does not have a private backyard […]. [2 C Street] has a driveway, which [1 C Street] does not.