FAMILY LAW – EVIDENCE – admissibility of evidence at trial – husband's parents as second and third respondents seeking to adduce evidence of a witness in an affidavit prepared on the Sunday prior to the Monday start of trial – the failure to provide the affidavit earlier and in accordance with trial directions unexplained – Aon Risk Services Australia Ltd v Australian National University principles applied – no medical evidence to explain the late provision of affidavit evidence – whether the failure to provide the witness's evidence earlier and in accordance with trial directions was a deliberate tactical decision – held affidavit inadmissible.
FAMILY LAW – TRUSTS AND TRUSTEES – evidence sought to be adduced by the husband’s parents as second and third respondents about the reason why the Leventis Family Trust was created and to interpret its terms – held, in accordance with Byrnes v Kendle (2011) 243 CLR 253, evidence ruled inadmissible.
Legislation
Family Law Act 1975 (Cth) ss 69ZT, 79, 79(1)(a) and 79(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 1.04
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) (2007) 162 FCR 466
[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.
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Details
AGLC
Leventis & Leventis (No 4) [2023] FedCFamC1F 58
Case
[2023] FedCFamC1F 58
Decision Date
CaseChat Overview and Summary
In the Family Law Court, Ms Leventis, the applicant, brought proceedings against Mr Leventis, the first respondent, and Mr and Ms Leventis, the second and third respondents. The case involved complex family law matters, including property adjustment applications under the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The second and third respondents, Mr and Ms Leventis, sought to adduce evidence from a witness, Mr N, on the eve of the trial, which raised significant evidentiary objections. The primary issue before the court was the admissibility of Mr N's late affidavit and the proposed unsworn evidence, which was objected to by the wife. The court had to decide whether the evidence was admissible, relevant, and whether admitting it would be just and equitable.
The court held that Mr N's 5 February 2023 affidavit was inadmissible. The affidavit contained vague and unsubstantiated statements, lacked specific details, and failed to provide any meaningful information that would assist in determining the issues in the case. The court found that the affidavit did not meet the necessary standards of admissibility, and its admission would not serve any useful purpose in the litigation. The court also refused leave for Mr N to make, file, and serve an affidavit in the form of the document styled "unsworn evidence of [Mr N]." The unsworn evidence contained irrelevant and inadmissible content, including hearsay, subjective opinions, and irrelevant personal details. The court found that admitting such evidence would not contribute to the resolution of the case and would likely cause unnecessary delays and complications.
However, the court held that evidence about the advances made by the second and third respondents was admissible as it went to their claim that they were owed over $2 million. The court also found that evidence about a second, different version of the Leventis Family Trust was relevant as it was critical that the correct version of the trust deed was in evidence. The three documents dated 6 February 2011 were relevant to the husband's contentions that he resigned as trustee. Whether those instruments were effective or invalid remained live issues for the trial to determine.
The court's decision ensured that the trial proceeded in a manner consistent with the overarching purpose of the Family Law Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. The court's ruling on the admissibility of evidence aimed to maintain the integrity of the trial process and prevent unnecessary delays and complications that could arise from admitting irrelevant or unsubstantiated evidence.