Chiu & Shun
[2023] FedCFamC1F 533
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chiu & Shun [2023] FedCFamC1F 533
File number(s): SYC 8033 of 2015 Judgment of: HARPER J Date of judgment: 9 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the matter was set down for final hearing to commence on 8 May 2023 with an estimate of five days –Where husband made oral application to tender a report of an adversarial expert witness –Where the report was served on the wife on 4 May 2023 – Where report was filed in affidavit form on 7 May 2023 – No affidavit accompanying an Application in a Proceeding was filed or sought to be relied upon by the husband in accordance with r 7.11(2) of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where no explanation for delay in serving the proposed evidence was proffered by the husband – Wife opposed receipt of the evidence – Where wife argued proposed evidence has little probative value and any value would be outweighed by the unfairness to her if the evidence was received – Where no basis demonstrated to justify the Court exercising a discretion to allow the husband to rely on an adversarial expert witness report – Application for permission to tender the report refused. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 7.10 and r 7.11 Division: Division 1 First Instance Number of paragraphs: 4 Date of hearing: 8 – 12 May 2023 Place: Sydney Counsel for the Applicant: Mr Bell Solicitor for the Applicant: Dong & Partners Solicitor for the Respondent: Ms Zhang Solicitor for the Respondent: Westlink Legal Pty Ltd ORDERS
SYC 8033 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHIU
Applicant
AND: MR SHUN
Respondent
order made by:
HARPER J
DATE OF ORDER:
9 May 2023
THE COURT ORDERS THAT:
1.The Respondent Husband’s oral Application to tender a report of an expert other than a single expert be refused.
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 Chiu & Shun has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
The Respondent Husband (“husband”) has served evidence of an apparently expert nature by a valuer called Mr B in an affidavit sealed on 7 May 2023. Although a copy of the report was served apparently on Thursday 4 May 2023, the affidavit as I note was not sealed until 7 May 2023. The nature of the expert evidence is apparently to the effect that Mr B opines on what rental would or should have been received by the Applicant Wife (“wife”) from one or other properties which are the subject of these proceedings as assets in the matrimonial pool.
The wife objects to the evidence being received by the Court. Mr B is not a single expert appointed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Accordingly, the husband is required by r 7.10 to seek the permission of the Court to tender the report or to adduce evidence at a hearing from an expert witness, other than a single expert. Rule 7.11 provides that a party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Proceeding. The husband filed no Application in a Proceeding but his solicitor made an oral Application for permission for the evidence to be adduced. Rule 7.11(2) provides that an the affidavit filled with the Application must state a number of matters, including whether the party attempted to agree on the appointment of a single expert with the other party and if not why not, and other matters including the name and expertise of the proposed witness. No affidavit accompanying an Application in a Proceeding, as provided for in the sub-rule, has been prepared, filed or sought to be relied upon by the husband.
The wife objects to the receipt of the evidence on the basis that it is served very late, outside any directions made by the Court. I note that on 19 April 2023 the matter was before me for a Compliance Hearing, and no Application for permission to rely upon an expert witnesses other than a single expert was foreshadowed by the husband. The wife contends that there has been no explanation for delay, there are a range of matters raised in the proposed expert report of Mr B including speculative factual assumptions and other matters concerning available rentals which she would seek to make enquiry about and may, if the evidence is allowed, seek to rely upon her own expert. She argues further that the material has little if any probative value and any value is outweighed by the unfairness which would be caused to her if the evidence was received.
These proceedings commenced on Monday 8 May 2023 with an estimate of five days. The late service of the proposed adversarial expert witness is just but one aspect of a general lack of appropriate attention and preparation in these proceedings which have combined to cause delay in the taking of oral evidence and in ascertaining from the parties precisely what each of their final proposals actually is. In my view no basis has been demonstrated which would justify the Court exercising a discretion to grant permission for the Respondent to rely upon the evidence of Mr B. Accordingly I refuse the oral Application for permission to tender the report.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered on 9 May 2023. Associate:
Dated: 4 July 2023
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