Moy and Pao (No 3)

In the Family Court of Australia, Ms Moy (applicant) and Mr Pao (respondent) were involved in a proceeding concerning property settlement, with B Pty Ltd (intervenor) also a party. The core dispute revolved around the intervenor's attempt to adduce evidence from witnesses located in mainland China. This attempt was complicated by the ongoing COVID-19 pandemic and associated international border closures, which prevented the witnesses from appearing in person.

The primary legal issues before the court were whether the intervenor could adduce evidence from its witnesses in China electronically, and if so, whether the requirements of the *Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters* and Rules 16.05 and 16.06 of the *Family Law Rules 2004* (Cth) had been met. The intervenor sought to rely on affidavits and potentially give evidence via video link, but had failed to comply with the court's previous orders regarding the filing of evidence and had not properly invoked the procedural rules for taking evidence abroad or electronically.

The court found that the intervenor had not satisfied the requirements of Rules 16.05 and 16.06, nor had it met the standards for expert evidence as outlined in cases such as *Dasreef Pty Ltd v Hawchar*. The intervenor's attempts to file affidavits late and without proper affirmation, and its failure to demonstrate compliance with the procedural rules for electronic evidence, were central to the court's decision. The court noted that the intervenor's counsel conceded that compliance with these rules had not been established.

Ultimately, the court adjourned the trial to allow for further consideration of the intervenor's position, but the intervenor's ability to adduce the contested evidence remained uncertain due to the procedural deficiencies. The applicant and respondent proposed a streamlined approach to resolve the core issue of the litigation, which the court considered a sensible way forward.