Althuis & Paz (No 2) [2025] FedCFamC1F 344 (22 May 2025)

1. The husband does not currently propose to cross-examine the expert, however that position may be reviewed.

1. All costs of and incidental to the Application in a Proceeding filed on 20 May 2025 and the Response thereto are reserved.

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 pseudonym Althuis & Paz has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons determine an Application in a Proceeding of Ms Althuis ("the wife") filed on 20 May 2025 broadly seeking to adjourn a hearing as to forum listed on 4 June 2025, and for leave to file an Application in a Proceeding and material in support thereof for the possible appointment of an expert witness other than a single expert witness, or in the alternative to inform Mr Paz ("the husband") and the Court that she does not wish to file such application.
2. The husband opposes the relief sought.
3. These reasons assume familiarity with the reasons delivered on 19 February 2025 (Althuis & Paz [2025] FedCFamC1F 88).

1. To give the relief sought in the Application in a Proceeding of the wife context, the parties commenced cohabitation on or about 1 September 2009 and married in Country B in mid-2015. In early 2015, prior to marriage, they signed a pre-marital contract pursuant to the civil code in Country B.
2. They moved to Australia in late 2015. There is one child of the relationship, X, who was born in 2019 in Australia and is currently five years old. The husband says that he and the wife returned from Australia to live in Country B in late 2022. The wife says that the husband returned to live in Country B in late 2022 and that she returned to live in Country B in early 2023. The parties separated on 22 December 2022. They were divorced in 2023 in Country B.
3. Both the parties and the child have continued to reside in Country B.
4. In mid-2023 the parties entered a document described as a "[Country B] Divorce Agreement" with the benefit of the advice of Country B lawyers. The agreement was notarised by way of Country B law in mid-2023.
5. On 26 June 2024 the wife filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders as to the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act"), including for the husband to transfer to her his interest in a property at E Street, Suburb D, NSW ("the Suburb D property") jointly held by the parties and for he to pay her a cash adjusting sum. On 12 September 2024 the husband filed a Response to an Initiating Application seeking for the wife's Initiating Application to be dismissed, contending an absence of jurisdiction including by application of principle by way of res judicata, cause of action estoppel, and contending that Australia is a wholly inappropriate forum.
6. On 24 September 2024 the proceedings were transferred to this Court.
7. In early 2025 the husband filed a summons in the Family Affairs division of the City C Court seeking relief as to the validity and effect of the Country B Divorce Agreement, including it being enforceable "worldwide", for there to be "no new liquidation of the matrimonial property", and for the wife to pay to the husband EUR6,000 (file number [...]). The first listing date of that summons is in late 2025.
8. About a month later the husband commenced other proceedings in the Family Affairs division of the City C Court (file number [...]) seeking orders as to "judicial division" of "the remaining joint assets" of the parties, including to sell the Suburb D property and apply the proceeds of sale to discharge the mortgage secured on the property in favour of F Bank and thereafter to be divided equally between the parties.
9. On 7 February 2025, as amended on 17 February 2025, the husband filed an Application in a Proceeding in this forum seeking, inter alia, for a threshold determination as to whether these proceedings ought to be permanently stayed until after the conclusion of the first tranche proceedings pending in Country B (file number [...]), or in the alternative, that these proceedings be permanently stayed.
10. On 14 February 2025 the wife filed a Response to the Application in a Proceeding seeking anti-suit relief for the husband to be restrained by injunction from continuing to prosecute the proceedings he commenced in Country B.
11. Each of the parties instructed their own experts as to the operation and effect of Country B law. The wife obtained expert evidence from Ms H, and the husband obtained expert evidence from Dr G.
12. On 19 February 2025 orders were made and reasons for judgment were delivered providing for the relief as sought by the husband in his Amended Application in a Proceeding and by the wife in her Response to an Application in a Proceeding to be listed for hearing for one day on 4 June 2025. Further orders were made implementing the mandate contained in ss 95 and 96 of the Act and r 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), as to the appointment of, and instruction to, a ch 7 single expert as to the operation of Country B law. Each party unsuccessfully sought leave to rely upon their own expert in these proceedings.
13. The opinions of the ch 7 single expert appointed pursuant to the orders made on 19 February 2025, Ms M, is contained in her report dated 25 April 2025. An affidavit exhibiting her report was filed on 22 May 2025.
14. Broadly, the single expert opines that the Divorce Convention signed by each of the husband and the wife and their respective lawyers in mid-2023 and notarised in mid-2023 is valid. The opinion appears to make conclusions as to the contents of the agreement identifying that the agreement states there are no assets or liabilities to divide, and that the parties have no claims against the other, without a distinction between claims arising in Country B or elsewhere.
15. The wife, at this point, may or may not put into issue the opinion of the single expert for the purposes of the hearing listed for 4 June 2025.
16. On 15 May 2025 the wife and directed questions to the single expert to clarify her opinion pursuant to r 7.26 of the Rules. The wife asked 10 questions, some of which had sub-questions. It may be that some of the questions are by way of clarification, and others are more of the character of cross-examination. No response has been received from the expert. Pursuant to the Rules, the expert has 21 days to respond to the questions in writing. The date of that response will expire on 5 June 2025, being the date after the allocated hearing.
17. The husband put a question to the expert by way of a letter dated 17 May 2025. Should the expert take the 21 days prescribed by the Rules to answer in writing, that response will also fall due after the current allocated hearing date.
18. In a letter dated 16 May 2025 the husband proposed that, instead of formulating questions pursuant to the Rules, the wife could cross-examine the single expert at the hearing. He has repeated that submission today.
19. The husband contends the content of the questions posed by the wife pursuant to the Rules are unlikely to ground any change to the opinions expressed by the single expert in her report. He characterised the wife's current application as being something that she "hopes" may achieve traction in the interlocutory determination currently listed for trial on 4 June 2025.
20. The husband has not filed a Financial Statement in these proceedings. The extent of his property interests is somewhat unknown. No draft joint collaborative balance sheet identifying the property, liabilities, and superannuation interests of the parties has been filed. As best can be identified from the wife's evidence, the property of the parties consists of:

(a) The Suburb D property purchased in the parties' joint names in early 2020 for the sum of $1.435 million sourced from $430,500 of savings, and the balance by way of a loan secured by way of mortgage over the Suburb D property in favour of F Bank.

(b) A 60 per cent share of the wife in an apartment in City C with an estimated value of $165,000 to $200,000.

(c) Corporate interests in Australia, including the husband being one of three directors of the J Group, which is comprised of J Pty Ltd which in turn owns K Pty Ltd, K2 Pty Ltd, and a company in Country L called K3 Limited. J Pty Ltd has 15 shareholders. The husband is currently a co-CEO of K Pty Ltd, which is an investment platform.

(d) Australian Superannuation.

1. Against that background, the wife filed an Application in a Proceeding on 20 May 2025 seeking:
   1. That the interim hearing listed 4 June 2025 commencing 10 am for one day be adjourned.
   2. That the answers to the clarifying questions put to [Ms M] as single expert (pursuant to rule 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) by the [wife's] legal representatives on 15 May 2025, be provided to the [husband's] legal representatives as soon as practicable after receiving them if not emailed directly to them by [Ms M]
   3. That the [wife] file and serve any Application in a Proceeding and affidavit in support for the appointment of an adversarial witness (pursuant to rule 7.08 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) within 14 days of receipt of the clarifying questions.
   4. That in the alternative to Order 3 above, the answers to the clarifying questions in Order 2 above obviate the need for the [wife] to make an application to rely on an adversarial expert's report, the [wife's] legal representatives inform the [husband's] legal representative and Chambers within 14 days of their receipt.
   5. That the [wife] be excused from filing the Case Outline as per order 10 made on 19 February 2025, given that the answers to the clarifying questions are yet to be provided by the Single expert and pending the determination of an adversarial witness report 6. The [wife's] costs of this Application be reserved.
   6. Such other orders necessary for the case management of the parties' competing applications.

1. Dealing with the second tranche of alternative relief sought by the wife as pressed today, r 7.02(c) prescribes that, if practicable and without compromising the interests of justice, expert evidence is to be given on an issue by a single expert witness. Rule 7.10 provides that a party may seek permission to tender a report or adduce evidence from an expert witness other than a single expert witness. Rule 7.11 mandates that when considering an application for permission, the Court must take into account the purpose of Pt 7.1 of the Rules, together with:

(a) The impact of the appointment on the likely cost of the proceeding;

(b) The likelihood of the appointment expediting or delaying the proceeding;

(c) The complexity of the issues in the proceeding;

(d) Whether the evidence should be given by a single expert witness rather than an expert appointed by one party only; and

(e) Whether the expert has specialised knowledge, based on the person's training, study, or experience (r 7.11(3)).

1. The Full Court has consistently not read down the circumstances in which there may be 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.
2. There is no issue as to the qualifications and expertise of the ch 7 single expert. It is difficult at this point to identify the challenges to the single expert's opinion as made by the wife. The wife has not identified today with precision any flaw in the single expert's opinion, nor has she indicated that a substantial body of opinion contrary to the opinion given by the single expert is available, nor that she, by way of her proposed expert, knows of matters not known to the single expert that may be necessary for the determination of the disputes currently listed for hearing.
3. At this point, at its highest, the wife may not agree with the current content and construction of the opinion of the ch 7 single expert, but pivotally for the purposes of her Application in a Proceeding pressed today, the report she proposes to adduce after the single expert's answers to the questions posed in writing does not currently exist. Hence, at this time, the potential evidence that she would place before the Court engaging with the opinion of the single expert is somewhat obtuse.
4. I am satisfied that each of the parties will each have the capacity to test the evidence of the single expert by way of cross-examination at the hearing if necessary. The husband has put the wife on notice that he does not oppose any application to cross-examine the single expert and proposes for such cross-examination to occur by Webex.
5. Having regard to the current outstanding capacity of the wife to receive further evidence from the expert by way of answers to the questions posed in writing, and her capacity to cross-examine the expert, there is no current reason to conclude the single expert will not revise her opinion as contained in her report, or will not revise her opinion, if and when, it is effectively tested at a hearing.
6. In all the circumstances I find that the subject matter identified in the report from the ch 7 single expert is not foreclosed. The relief as sought by the wife in her Application in a Proceeding filed on 20 May 2025 as to seeking leave to potentially adduce evidence from an expert other than a single expert will be refused. So it is clear, this determination does not preclude the wife from making such further application, exercising her rights pursuant to the Rules, if she is so advised.
7. As to the application for an adjournment of the hearing, there is merit to the contentions of the wife that the expert should not be required to rush her answers to the clarifying questions posed by each party. Presently, there is no indication the expert will be able to provide her answers in writing on or before the date they are due, being 5 June 2025, the day after the current listing on 4 June 2025. As identified by the wife, as a matter of procedural fairness, both parties should have some time to consider their positions after receiving the answers and have a capacity to exercise their rights at law, including pursuant to the Rules.
8. In all the circumstances, the wife's application for adjournment of the hearing listed to commence for one day on 4 June 2025 will be granted.
9. Having regard to the checkered history of this litigation as identified in earlier orders and judgments, I will not allow the outstanding issue as to forum wither on the vine while the parties continue to take respective positions from Country B as to the proceedings in this forum. Capacity exists for the subject matters listed for hearing on 4 June 2025 to be heard by a judge in the Federal Circuit and Family Court of Australia (Division 1) on 17 June 2025. The matter will be allocated for hearing on that day. It is unfortunate if the date does not meet the convenience of counsel briefed by either party.
10. No doubt issues as to costs will need to be ventilated in relation to the adjournment. I propose to reserve any application for costs.
11. For all of the above reasons, I make the orders as set out herein.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.