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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chiu & Shun

Details

AGLC: Chiu & Shun [2023] FedCFamC1F 533
Case: [2023] FedCFamC1F 533
Decision Date

CaseChat Overview and Summary

In the case of Chiu & Shun, the husband sought permission from the Federal Circuit and Family Court of Australia to tender a report from an adversarial expert witness, Mr. B. The report was intended to provide an opinion on the potential rental income that could have been earned from properties involved in the proceedings. The wife objected to the report, arguing that it was served too late and would cause her unfairness. The husband's application was made orally, without the required accompanying affidavit, and no explanation was provided for the delay in serving the report. The wife contended that the report had little probative value and that any value it might have was outweighed by the unfairness of its late submission.

The legal issues before the court were whether the husband could rely on the report of an adversarial expert witness, and whether the court should exercise its discretion to permit the late tender of such evidence. The husband needed to file an Application in a Proceeding with an accompanying affidavit, as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The court had to consider whether any exceptional circumstances justified permitting the late evidence and whether the evidence had probative value that outweighed any unfairness to the wife.

The court held that the husband had not followed the correct procedural steps by filing an Application in a Proceeding with an accompanying affidavit. No explanation was given for the delay in serving the report, and the wife argued that the late submission would cause her unfairness. The court found that the husband had not demonstrated any basis to justify exercising the court’s discretion to allow the late evidence. The probative value of the report was minimal, and any value was outweighed by the unfairness to the wife. Consequently, the husband's application to tender the report was refused.

The court ordered that the husband's oral application to tender the report of Mr. B was refused. This decision underscores the importance of adhering to procedural requirements in family law proceedings, particularly regarding the timely and proper submission of expert evidence. The court emphasised that late evidence, without a satisfactory explanation, could result in it being excluded if it causes unfairness to the opposing party.

Orders