Adamo & Vinci [2020] FamCAFC 208; (25 August 2020)

Last Updated: 1 September 2020

FAMILY COURT OF AUSTRALIA

ADAMO & VINCI

[2020] FamCAFC 208

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband appealed against an interlocutory order – Where insufficient doubt attends the judgment sought to be challenged – Where no substantial injustice will accrue if leave is not given – Leave refused.

Family Law Act 1975 (Cth) s 94AA Family Law Rules 2004 (Cth) rr 15.42, 15.52

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Salmon and Ors & Salmon [2020] FamCAFC 134 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPLICANT:

Mr Adamo

RESPONDENT:

Ms Vinci

INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors

FILE NUMBER:

SYC

3598

of

2018

APPEAL NUMBER:

EAA

100

of

2020

DATE DELIVERED:

25 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 July 2020

LOWER COURT MNC:

[2020] FamCA 537

REPRESENTATION:

THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Alidenes & Co Solicitor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stidwill Solicitors (not participating)

ORDER

(1) Leave to appeal the order of a judge of the Family Court made on 7 July 2020 is refused.

(2) The applicant husband is to file and serve written submissions in relation to costs of no more than two (2) pages by 4.00 pm on 2 September 2020.

(3) The respondent wife is to file and serve written submissions in reply of no more than two (2) pages within five (5) days thereafter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamo & Vinci has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 100 of 2020
File Number: SYC 3598 of 2018

Mr Adamo

Applicant

And

Ms Vinci

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By his Amended Notice of Appeal filed on 12 August 2020, Mr Adamo (“the husband”) seeks to appeal an order made by a Judge of the Family Court on 7 July 2020 dismissing an application for permission to call an expert witness brought by him as part of pending property settlement and parenting proceedings between himself and Ms Vinci (“the wife”).
2. The order sought to be appealed is interlocutory, and thus the husband requires leave to bring the appeal (s 94AA of the Family Law Act 1975 (Cth)). In this case, the question of leave to appeal will be dealt with as a separate issue to the appeal itself. The parties were directed to submit written submissions on the question of leave to appeal and the Full Court considered the matter without oral argument. Written argument was received from the husband on 13 August 2020 and the wife on 21 August 2020 and no submissions were provided by the Independent Children’s Lawyer. The husband further provided a bundle of documents which he asked the Full Court to consider in determining whether leave to appeal should be granted. The documents comprised the documents before the primary judge, her Honour’s primary reasons for judgment of 7 July 2020 and the transcript of the proceedings of 6 July 2020.
3. The test for the grant of leave to appeal is two-fold. First, the application must demonstrate that the decision in question is attended with sufficient doubt to warrant the grant of leave. The second requirement is that a substantial injustice will result from a refusal of leave to appeal (Medlow & Medlow (2016) FLC 93‑692 at [57]).
4. In order to give context to the issues to be decided, we will set out some background to the application, taken from the reasons of the primary judge.
5. The parties are engaged in proceedings as to both parenting and property settlement. The final hearing of those issues is listed for hearing before the primary judge for five days commencing on 21 September 2020.
6. The wife was an elected official. It is the husband’s contention that he played an instrumental role in the wife’s election and, he claims that he contributed to her entitlement to a pension (at [8]).
7. In proof of that assertion, on 26 June 2020, the husband by Application in a Case, sought an order permitting him to obtain and to rely on a report from his brother in the role of an expert in the field of “politics”.
8. As noted by her Honour at [10], r 15.42(c) of the Family Law Rules 2004 (Cth) provides that if practicable and without compromising the interests of justice, expert evidence will be adduced from a single, nominated expert witness. The husband did not seek the appointment of such an expert witness, instead he applied for permission to adduce expert evidence (other than by way of a single agreed expert witness) (see too Salmon and Ors & Salmon [2020] FamCAFC 134 as to the operation of the rule).
9. Rule 15.52 sets out the evidence to be presented in making that application. The husband must state why the appointment of such an expert is necessary and whether the agreement of the other party to the appointment of the expert has been sought, and if not, why not. Other matters include setting out the expertise asserted, the issue about which the expert witness’s evidence is to be given and the field in which the expert has the necessary training. Finally, the husband must state whether there is any previous connection between the expert and the party.
10. In the affidavit in support of the application, the husband said that he drafted a short affidavit for his brother to swear and “emphasised the need for [his brother] to comply with his overriding duty to the Court to be independent and impartial on the issues concerned, and he has acknowledged and has accepted this duty” (Husband’s affidavit filed 26 June 2020, paragraph 10).
11. As to the first criterion, the husband said:
    4. I have not attempted to agree on the appointment of a single expert witness with the [wife], because I strongly suspect that the [wife] would not agree to the appointment of [his brother] as such a witness, because whilst an [elected official], I observed that she mostly didn’t get along with [his brother], because she felt he didn’t help her get promoted enough in her career. I strongly suspect she would always consider him an adversarial expert witness, and as such, it is not practicable that expert evidence be given on the relevant issues by a single expert witness, given the great difficulty in finding any expert witness properly qualified, and prepared, to give expert opinion evidence on such an esoteric subject matter with which those issues are concerned.

(Husband’s affidavit filed 26 June 2020)

12. The husband’s brother swore an affidavit for use in the application, and in that affidavit he said:
    5. Although [the wife] and I didn’t get along ... the same might be said about my relationship with [the husband]. I don’t believe I have spoken to [the wife] since ... 2011. I believe that I have no possible conflict of interest of any kind, other than that which I have disclosed in this affidavit. I do not consider that any interest that I have disclosed affects my suitability as an expert witness on any issue on which I would give in evidence, if permitted by the Court to do so...

(Mr B’s affidavit filed 6 July 2020, paragraph 5)

13. The primary judge dismissed that application. Her Honour took into account that the husband had not sought the appointment of a single expert witness and gave no evidence of any effort that he made to find an expert other than his brother to give the evidence he thinks is necessary, nor of any attempt to seek the wife’s agreement (at [13] and [17]).
14. Further, while the proposed single expert witness said he would not charge a fee for his report, her Honour observed that if the wife was required to seek the opinion of another adversarial witness, she would have to bear those costs (at [18]).
15. Additionally, the primary judge said that while the proposed single expert witness may be of the view that he had no conflict of interest and that he would be an impartial and objective witness, her Honour thought it was “unlikely that a reasonable and properly informed observer would come to the same conclusion” (at [27]).
16. The husband seeks leave to appeal her Honour’s order.

THE APPEAL

17. There are four asserted grounds of challenge to her Honour’s order. Ground 4 however seems to be not so much a ground of appeal but a complaint about a docket Registrar and an assertion that there is a “reasonable apprehension of bias and/or a denial of procedural fairness”. Clearly whatever is meant by this ground, it is not a competent challenge to her Honour’s order and for the purposes of determining whether leave to appeal should be granted, we will ignore that ground.
18. Ground 1 contends that her Honour failed to give adequate reasons for refusing permission pursuant to r 15.52(3) to adduce evidence from the proposed single expert witness.
19. Ground 2 argues that the primary judge acted on “wrong legal principles or made errors of law”. The ground is particularised and we will set them out as they appear in the Amended Notice of Appeal:

(i) by allowing extraneous or irrelevant matters to guide or affect [the primary judge], such as the sole facts that the expert witness is the [husband’s] brother and (wrongly) findings relating to why a single [expert] witness has not been instructed, or giving undue weight to such factors;

(ii) by failing to give sufficient consideration or weight to the relevant matters in Part 15.5 of the Family Law Rules 2004 (Cth), and in particular Division 15.5.3 of those Rules, and the affidavit evidence of the [husband] and proposed expert going to such matters filed
26 June 2020.

(iii) by peremptorily determining that the proposed expert witness could not be an impartial and objective witness on the issues concerned.

(As per the original)

20. The primary judge did not “peremptorily” determine that the husband’s brother could not be an impartial single expert witness. Her Honour said that although the proposed witness did not believe he had a conflict of interest “it is unlikely that a reasonable and properly informed observer would come to the same conclusion” (at [27]). However, the thrust of the ground contends errors because the primary judge focussed solely on the relationship between the husband and the proposed single expert witness, his brother.
21. Ground 3 argues that the primary judge’s order denied the husband procedural fairness by depriving the husband of the opportunity to present a proper case and would leave the Court in the position that would deprive the Court of proper evidence on the point.

DISCUSSION

22. While the grounds raise a number of challenges to the correctness of her Honour’s order, for the purposes of determining whether leave to appeal ought be granted, we are not persuaded that the husband’s grounds, even when read with his written Summary of Argument filed on 13 August 2020 supporting the grounds, raise sufficient doubt as to the correctness of her Honour’s decision to engage a reconsideration by the Full Court.
23. However, even if it did, in considering the second limb of the test for granting leave to appeal, it is accepted that an appeal lies from an interlocutory order which affects the final result (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 (“Gerlach”) at [6]). However the existence of an apparent error will only result in a new trial or appellate intervention where that error resulted in a miscarriage of justice (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 144). Put another way, Kirby and Callinan JJ in their separate judgment in Gerlach said at [49] that the point sought to be appealed must be “relevant to the disposition of the case”, for otherwise it would be futile to intervene.
24. It is also well accepted that a party need not appeal from an interlocutory judgment, such as this, but can wait until final judgment is delivered (Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [78]). As to this issue, the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 noted at 177 that “[a]n interlocutory order for an injunction is a matter of practice and procedure” and said:

... We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.):

“... I am of opinion that, ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

(As per the original) (Footnotes omitted)

25. Here, her Honour’s decision prevents the husband from retaining his brother to give evidence on his behalf on an issue in dispute between the parties. It does not prevent him from seeking another similarly qualified expert to give the desired evidence.
26. We are not persuaded that a substantial injustice would arise if leave was not given and leave to appeal will be refused.

COSTS

27. As we have said, the wife filed written submissions on the issue of leave to appeal. She further sought an order that the husband pay her costs of meeting the application. The reader of the wife’s written submissions is directed to a single page document in which the costs claimed are $6,725, which includes GST and a sum of $1,500 (also inclusive of GST) for estimated counsel’s fees.
28. The husband has not had an opportunity to respond to that claim. We will direct that he file further short written submissions in relation to the costs claimed. The written submission is to be no longer than two pages and filed within five days. The wife will also be able to file written submissions in reply of no more than two pages, to be filed and served five days thereafter.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 25 August 2020.

Associate:

Date: 25 August 2020