Heng and Long & Ors

In *Heng and Long & Ors*, Forrest J of the Family Court of Australia considered several applications concerning the admissibility of evidence in a family law proceeding. The primary dispute involved the parties' attempts to rely on affidavits from witnesses residing in China, who could only be cross-examined by telephone, and the admissibility of a new affidavit filed by the First Respondent shortly before the trial. The Applicant also sought to prevent the Second Respondent from relying on certain annexures to her trial affidavit.

The court was required to determine whether to grant leave for the parties to rely on affidavits where the witnesses were located overseas and could only be cross-examined via telephone, particularly when no prior application had been made to facilitate this method of examination and the Family Court Rules 2004 (Cth) had not been complied with. Additionally, the court had to decide whether to permit the filing and reliance upon a new affidavit by the First Respondent served only two days before the trial, without adequate justification for the delay. The court also considered an application by the Applicant to refuse the Second Respondent leave to rely on annexures to her trial affidavit, despite the Applicant's legal representatives having previously seen these documents via email.

Forrest J refused the applications to rely on the affidavits of the Chinese witnesses, finding that the Family Court Rules had not been complied with and no prior application had been made to facilitate telephone cross-examination. The court also dismissed the First Respondent's application to file and rely on a fresh affidavit sworn shortly before the trial, as no adequate reason was provided for the late filing. However, the court granted the Applicant leave to rely on her affidavit filed on 23 April 2018, and granted the Second Respondent leave to rely on her affidavit filed on 20 September 2018, as well as to tender the bundle of annexures attached to her trial affidavit.