CHIH & CHAN

[2018] FamCA 126

FAMILY COURT OF AUSTRALIA

CHIH & CHAN [2018] FamCA 126

FAMILY LAW – EVIDENCE – Expert witness

Family Law Act 1975 (Cth)

APPLICANT: Ms Chih

RESPONDENT: Mr Chan

FILE NUMBER: SYC 3511 of 2014

DATE DELIVERED: 31 January 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 31 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fowler

SOLICITOR FOR THE APPLICANT: Cominos Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Kim & Associates

Orders

1. The lawyers for the parties are to confer and attempt to agree on facts that are the subject of evidence in Ms B’s affidavit.

2. The wife, if she so choses, within 14 days can file and serve a supplementary affidavit by Ms B which indicates what specific training, study or experience she has to express opinions about Korean cultural attitudes and customs relating to inheritances.

3. Leave is granted to the wife to rely upon evidence from Ms B which is relevant to any contested matter subject to any unresolved objection relating to Ms B’s expertise.

4. By consent, leave is given for Mr Chan Snr to give evidence by telephone and by consent, Ms O is also given leave to give evidence by telephone.

5. Within 7 days the parties are to confer in relation to objections in relation to Ms B’s report and provide my associate with a copy of those objections.

6. Within 7 days the lawyers for the parties are to confer and provide my associate with a draft trial plan.

7. Within 14 days the husband is to file and serve his evidence in reply in relation to the Kennon issues.

8. Subject to any objections that the husband wishes to take as to relevance, the husband use his best endeavours to obtain from his parents documents that the wife seeks from his parents in any written document provided to the husband today.

9. I confirm the hearing of this matter will be heard on 19, 20 and 22 February 2018.

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 Chih & Chan 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3511 of 2014

Ms Chih

Applicant

And

Mr Chan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application by the wife for leave, pursuant to rule 15.52 Family Law Rules, to adduce evidence from her own expert, Ms B. Ms B has filed an affidavit setting out the evidence that she would give and setting out her expertise.

2. Ultimately no objection is taken to the granting of leave based on the failure by the wife to engage with the husband in the process of seeking a single expert to give this evidence. That concession is rightly made particularly given that it is clear from notations made by Registrar George on 1 February 2017 at notation 4 and on 9 June 2017 at notation 3 that both parties at those times envisaged that they would individually call expert evidence as to Korean law in relation to inheritances and property. 

3. The husband was given an opportunity to file a response and his own application for leave to call expert evidence but has chosen not to do so.

4. The fundamental objection that is raised in respect of the opposition to the application was based on the submission by counsel for the husband that this evidence is not necessary because in relation to those parts of the evidence that relate to:

   4.1.how property passes in Korea according to statute when a person dies intestate;

   4.2.about whether the distribution of a deceased person’s property on intestacy pursuant to Korean statute can be altered by agreement between the surviving beneficiaries;

   4.3.about the operation of Korean inheritance tax and how it is calculated and levied; and

   4.4.about how the Korean rental bond (Jeonse) systems operate,

   are not matters which are the subject of any controversy.

5. Counsel for the wife indicated that that submission by counsel for the husband came as some surprise to him. That part of the application will be resolved on the basis that the lawyers are to confer and consider whether there can be a statement of agreed facts in respect of that issue. If there can be agreed facts presented to the court, then counsel for the wife has indicated he will not rely upon the expert’s evidence in relation to those areas where facts are agreed. Otherwise I have granted leave in relation to the expert giving evidence in relation to those issues.

6. The other objection that was raised related to the expertise of the witness to give opinions about Korean cultural attitudes and customs with respect to the competing interests of an adult child, beneficiaries and the surviving spouse of the deceased. That is a matter which is more an evidentiary objection than a matter which goes to the threshold issue as to whether leave is given to rely upon expert evidence about a particular issue. Although I concede it has some relevance to the question of leave, not sufficient relevance that would lead me to dismiss the wife’s application for leave for that reason. The wife, if she so choses, within 14 days can file and serve a supplementary affidavit by Ms B which indicates what specific training, study or experience she has to express opinions about Korean cultural attitudes and customs relating to inheritances. I will deal with all outstanding objections on the first morning of the hearing.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 31 January 2018.

Associate: 

Date:  5.2.18