ISAACSON & ISAACSON - [2019] FCCA 522

FEDERAL CIRCUIT COURT OF AUSTRALIA

ISAACSON & ISAACSON

[2019] FCCA 522

Catchwords:
FAMILY LAW – Property division – expert evidence – none in admissible form – so‑called expert evidence –excluded.

AFFIDAVITS – Not admissible – not a matter of weight – review of authorities.

Legislation:

Evidence Act 2008, s.79(1)
Family Law Act 1975, s.79

Family Law Rules2004, O.16, r.10
Federal Circuit Court of Australia Act1999, s.64
Federal Circuit Court Rules 2001, r.1.06

Cases cited:

Corrigan v Commvault Systems (Australia) Pty Ltd(2011) 192 FCR 71
Curley v Duff(1985) 2 NSWLR 716

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Dunne v English(1874) LR 18 Eq 524

Goodridge & Beadle [2017] FCCA 3219

GPI Leisure Group Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

In the Marriage of Chang & Su (2002) FLC 93-117
In the Marriage of Smith (1991) FLC 92-261
Livingston v Commissioner of Stamp Duties (1960) 107 CLR 411
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Manson v Ponninghaus (1911) VLR 239
Sheahan v Joye(1995) 57 FCR 389
The Parisian (1887) 13 PD 16

Other materials:
John Levingstone, The Law of Affidavits (Federation Press, 2018)
Justice Arthur R Emmett, ‘Practical litigation in the Federal Court of Australia: Affidavits’ (2000) 20 Australian Bar Review 28
Justice John Bryson, “Affidavits” (1999) 18 Australian Bar Review 166
The Honourable Justice Alan Robertson, “Affidavit Evidence” (FCA) [2014] Federal Judicial Scholarship 3

Applicant:

MS ISAACSON

Respondent:

MR ISAACSON

File Number:

MLC 10723 of 2017

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

7 February 2019

Date of Last Submission:

28 February 2019

Delivered at:

Melbourne

Delivered on:

6 March 2019

REPRESENTATION

Counsel for the Applicant:

Mr D Sweeney

Solicitors for the Applicant:

Lander & Rogers

Counsel for the Respondent:

Ms E Johnson

Solicitors for the Respondent:

Zenith Lawyers and Consultants

DIRECTION

By 4pm on 7 March 2019 the parties submit a minute of proposed orders that give effect to these reasons.

ORDER

The parties are at liberty to apply for a further hearing 10am on Friday 8 March 2019.

IT IS NOTED that publication of this judgment under the pseudonym Isaacson & Isaacson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10723 of 2017

MS ISAACSON

Applicant

And

MR ISAACSON

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this proceeding were married between 2010 and 2016. In October 2017 the applicant commenced this proceeding for orders dividing property.
When distilled to their essence, the issues between the parties were few. In no particular order, they were –
a)the value of the husband’s book collection and whether orders should be made for the sale of the collection;
b)in what percentages the sale proceeds of the book collection should be divided;
c)whether the husband’s expectant inheritance should be included in the assets to be divided; and
d)the financial contributions of the…

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 ISAACSON & ISAACSON

Details

AGLC: ISAACSON & ISAACSON [2019] FCCA 522
Case: [2019] FCCA 522
Decision Date: 6 March 2019

CaseChat Overview and Summary

The parties to this proceeding were Isaacson & Isaacson. The dispute concerned the division of property. The decision was made by His Honour Judge J D Wilson QC in the Family Court of Australia.

The central legal issue before the Court was the admissibility of expert evidence presented by the parties. Specifically, the Court was required to determine whether the affidavits filed, which purported to contain expert evidence, met the requirements for admissibility under the rules of evidence.

His Honour Judge Wilson QC reviewed a number of authorities concerning the admissibility of expert evidence. He concluded that the affidavits in question did not constitute admissible expert evidence. The Court held that the failure to comply with the rules of evidence meant the material was not a matter of weight to be considered by the Court, but rather was inadmissible from the outset.

The Court therefore excluded the purported expert evidence.

Orders