Nadar and Nadar
[2018] FCCA 1505
•8 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NADAR & NADAR | [2018] FCCA 1505 |
| Catchwords: FAMILY LAW – Property – adjustment of property interests. |
| Legislation: Family Law Act 1975, ss.75, 79 |
| Cases cited: Bevan & Bevan [2014] FamCAFC 19 Kinda Kapers Charlestown Pty Ltd v Newcastle Neptunes Underwater Club Inc and Ors [2007] NSWSC 329 Russell & Russell (1999) FLC 92-877 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 |
| Applicant: | MR NADAR |
| Respondent: | MS NADAR |
| File Number: | PAC 5561 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 8 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Othen |
| Solicitors for the Applicant: | Slater and Gordon Lawyers |
| Counsel for the Respondent: | Mr Givney |
| Solicitors for the Respondent: | Mills Oakley Lawyers |
ORDERS
The husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the property situated at and known as Property A being the whole of the land contained in folio identifier (“the Property A property”):
(a)The listing price for the Property A property shall be as agreed between the parties within 14 days and if there is no agreement then the listing price shall be as advised by a valuer nominated by the President of the Real Estate Institute of New South Wales;
(b)The Property A property shall be listed for sale by private treaty with estate agents as agreed upon between the parties within 14 days of the date of these Orders and if there is no agreement then the estate agent shall be nominated by the President of the Real Estate Institute of New South Wales.
(c)In the event that the Property A property has not been sold by or before a date two months from the date of these Orders and unless otherwise agreed between the parties, then the husband and wife shall make all such arrangements and do all such acts and things and sign all such documents and pay all monies equally, necessary to procure a sale by public auction of the Property A property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties and if there is no immediate agreement then the auctioneer shall be as nominated by the President of the Real Estate Institute of New South Wales;
(ii)The auction shall take place within one month after the deadline date for sale by private treaty;
(iii)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and
(iv)The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the real property’s auction.
(d)In the event that the Property A property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to produce a second auction within a further five weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
Upon completion of the sale pursuant to Order 1 above, the husband and wife shall forthwith do all acts and things and sign all necessary documents for the sale proceeds of the Property A property to be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any Council and Water rates and maintenance levies outstanding in respect of the Property A property;
(b)To discharge the mortgage and any other encumbrances affecting the Property A property;
(c)To pay the Capital Gains Tax incurred by either party from the sale of the Property C property and any other current tax liability of the parties; and
(d)The balance remaining to be divided as to 59% to the wife and 41% to the husband.
The husband and wife shall forthwith do all acts and things and sign all necessary documents to effect a sale of the property situated at and known as Property B (country omitted), (“the Property B property”):
(a)The listing price for the Property B property shall be as agreed between the parties and if there is no agreement a valuer must be appointed to undertake a valuation of the Property B property to be paid equally by the parties with the listing price to be as recommended by the valuer;
(b)The Property B property shall be listed for sale with Real Estate Agents, by private treaty unless otherwise agreed between the parties.
(c)In the event that the Property B property has not been sold by or before a date six months from the date of these Orders and unless otherwise agreed between the parties, then the husband and wife shall make all such arrangements and do all such acts and things and sign all documents and pay all monies equally, necessary to procure a sale by public auction of the Property B property upon the following terms:
(i)The auctioneer shall be as agreed upon between the parties;
(ii)The auction shall take place within three months after the deadline date for sale by private treaty;
(iii)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer; and
(iv)The parties shall each pay and be responsible for payment of one half of the auction expenses payable before the real property’s auction.
(d)In the event that the Property B property is not sold by auction or by private negotiation within 14 days after the said auction, then the husband and wife shall do all such acts and sign all necessary documents and shall pay all monies equally necessary to procure a second auction within a further five weeks of that date otherwise upon the same terms and conditions as apply to the first auction.
Upon completion of the sale pursuant to Order 3 above, the husband and wife shall forthwith do all acts and things and sign all necessary documents for the proceeds of the sale of the Property B property to be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any Council and Water rates and maintenance levies outstanding in respect of the Property B property;
(b)In payment to the husband’s father, namely, Mr Nadar all monies necessary to reimburse him the cost of any maintenance or repair work expended by him on the Property B property;
(c)The balance and remaining to be divided as to 59% to the wife and 41% to the husband.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the Super Fund A Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, as at the date of these Orders, in the sum of $113,562 and that there be a corresponding reduction to the entitlement the husband would have had in the Super Fund A Superannuation Fund but for this Order.
Order 5 above have effect from the operative time and the operative time for this order is four business days after the service of this Order on the Trustee of the Super Fund A Superannuation Fund.
Orders 5 and 6 binds the Trustee of the Super Fund A Superannuation Fund.
Pursuant to section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the husband’s interest in the Super Fund B and Benefits Scheme Superannuation Fund, the wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, as at the date of these Orders, in the sum of $68,966, and that there be a corresponding reduction to the entitlement the husband would have had in the Super Fund B and Benefits Scheme Superannuation Fund but for this Order.
Order 8 above have effect from the operative time and the operative time for this Order is four business days after the service of this Order on the Trustee of the Super Fund B and Benefits Scheme Superannuation Fund.
Order 8 and 9 binds the Trustee of the Super Fund B and Benefits Scheme Superannuation Fund.
The husband and wife shall forthwith do all acts and things and sign all documents necessary to apply for a Pension Sharing Order under the (country omitted) Marriage Act to the effect:
(a)That the wife shall receive 50% of the husband’s rights under his 1975 (employer) Pension Scheme in the (country omitted);
(b)That the costs of the application and of the implementation of the Pension Sharing Order are shared equally between the parties; and
(c)That the husband and wife have leave to make the application.
The parties shall forthwith jointly instruct at joint expense Ms C of Family Law, (country omitted) to prepare all documents required for the parties to comply with order 11, and in the event she declines these instructions then such other lawyer as Ms C nominates.
The parties shall forthwith obtain from the (country omitted) an updated C.E.V of the husband’s rights in the said Pension Scheme, at joint expense.
The husband shall do all acts and execute all documents to transfer to the wife the registration and all the party’s right, title and interest in the Vehicle 1 motor vehicle with registration number.
The husband and wife shall forthwith do all acts and things and sign all necessary documents to close and to distribute any monies left remaining equally in the following bank accounts:
(a)Bank D in the joint names of the parties having account number ending in;
(b)Bank F Account in the joint names of the parties having account number ending in;
(c)(overseas) Bank Account in the (country omitted) in the joint names of the parties having account number ending in; and
(d)(overseas) Bank Account in the (country omitted) in the joint names of the parties having account number ending in.
Unless otherwise specified in these Orders each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such parties at the date of the making of these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s records thereof, insurance policies are deemed to be in the possession of the party named as the life insured, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides conditions for payment out of such entitlement.
Both parties shall do all acts and things and sign all documents necessary to give effect to these Orders.
If either party refuses or neglects to sign, within 14 days of a written request to do so, any documents necessary to effect the terms of these Orders, a Registrar or such other officer or person as may be appointed by the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Nadar & Nadar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5561 of 2016
| MR NADAR |
Applicant
And
| MS NADAR |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property adjustment proceedings. The husband is the Applicant and the wife is the Respondent. The parties were married for 27 years and they have three adult children together. They are unable to resolve their property dispute and have instead asked the Court to determine the issue of what is a just and equitable order for property adjustment orders in all of the circumstances.
There are not many facts in dispute between the parties.[1] Indeed, what is in dispute is peripheral to the issues the Court needs to determine.
[1] A note on the evidence
Findings of Fact
The parties commenced living together in 1988 when they were both about 21 years old. At the time, neither party had any significant assets in their name. They were married on 1993.
There are three children of the relationship. All three are now adults, with the youngest child having turned 19 shortly before the final hearing. There is a dispute between the parties as to where their middle child is living, namely, whether he is currently living primarily with the wife or whether he lives between the two homes. This is one of the peripheral issues which is in dispute.
The parties’ youngest child started her university studies this year. The parties have chosen to support her through those studies by providing a roof over her head and generally supporting her lifestyle. She is living with the wife.
In 1988, the parties jointly purchased their first property located at Property B (country omitted), in the (country omitted). They paid a deposit of (omitted) and borrowed the remainder of the purchase price. At the time both of the parties were working on a full-time basis, the husband as an “(occupation omitted)” in the (employer omitted) and the wife as a (occupation omitted) for (employer omitted).
Both parties were diligent and hardworking during their relationship, with the husband focusing on his career for the good of the family and the wife focusing on the family to the detriment of any career she might have been able to otherwise pursue.
While at the beginning of the parties’ relationship they lived in the Property B property, in around 1993 they moved to (country omitted). The ability to secure housing in this area resulted in a better quality of residence for the parties.
Whilst serving with the (employer omitted), in 1995 the husband completed a (qualifications omitted).
Between 2002 and 2004 the husband had an exchange posting with the (employer omitted), enabling the parties and their children to experience living in Australia before the husband was transferred into the (employer omitted). The family lived in Western Australia.
In 2004 the parties purchased a property at Property C, in Western Australia on the expectation that the husband upon transfer into the (employer omitted) would be posted in Western Australia. Instead, the husband was posted to Sydney and the family started living in Suburb Y. In 2008, the family moved to Suburb W where they lived until the husband left the (employment omitted) in early 2010.
Between 2005 and 2008 the husband was the (occupation omitted) for the (employer omitted). During his career he conducted a broad range of live (employment omitted).
Upon leaving the (employment omitted) the husband commenced employment with the (employer omitted) and the family moved to rental accommodation in Suburb X, then Suburb W and then Property A. The family lived in this rental accommodation until they purchased the former matrimonial home at Property A.
In 2011 the husband completed a (qualifications omitted).
Between 2011 and 2013, the husband worked for (employer omitted). In late 2013, he commenced employment at (employer omitted). He has been promoted a number of times since, and currently the husband holds the positon of (occupation omitted), at (employer omitted). He presently earns $3,583 gross per week.
The wife had a very different career path, working around her family commitments. At times these were significant, noting that the husband was away at (employment omitted).
At the commencement of the relationship, the wife was working on a full-time basis as a (occupation omitted). She ceased her full-time employment before the birth of the parties’ first child and ultimately returned to mostly part-time work. After the family moved to Australia, the wife did not work until 2005, when she returned to the work force on a part-time basis. She worked firstly for the (employer omitted) as a (occupation omitted), then as a (occupation omitted) for (employer omitted) and lastly as an (occupation omitted) at (employer omitted) where she remains employed. For a period of time in 2016 the wife worked a second job at (employer omitted), but due to clashes with her hours at (employer omitted) she did not retain this position. She presently earns approximately $700-$900 gross per week, depending on her hours.
The husband has been renting since separation. He has arranged his affairs so that the wife and children would remain living in the former matrimonial home post separation. He has been paying the mortgage except for a brief period of three months in 2017. The husband has been asking for the property to be sold since the commencement of proceedings in November 2016. It was not until shortly before the hearing that the wife for the first time sought orders for the sale of that property, seemingly having come to a realisation that she will not be able to afford to pay the mortgage. While she may not be in a position to fund the entire mortgage, the wife refuses to make any contributions towards the mortgage – even to the date of sale of the property. Indeed, such a proposition, when put to her in cross-examination, seemed to be a complete surprise to her.
The Relevant Legal Principles
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 Family Law Act1975 (Cth) was set out by the High Court in Stanford v Stanford,[2]where their Honours stated:
[2] [2012] HCA 52; (2012) 247 CLR 108
[37] … first, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property… the question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
…
[40]… whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[41] Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” identified in s 43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act…
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order…
Such approach was subsequently considered by the Full Court of the Family Court in Bevan & Bevan[3], Chapman & Chapman[4] and Scott & Danton[5].
[3] [2014] FamCAFC 19
[4] [2014] FamCAFC 91
[5] [2014] FamCAFC 203
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. The requirement is so satisfied in this instance.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[6]
[6] see generally Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”[7].
[7] Bevan supra at [86]
Assessment of Contributions and s75(2) Factors
At the time of final hearing, the property pool consisted of the following assets:
a)Non-Superannuation Assets:
Item Owner Value Property A Joint $ 2,100,000 Proceeds from sale of Property C Wife $ 20,147 Property B (country omitted) Joint $ 163,610 300 Shares Q Husband $ 957 Vehicle 2 Husband $ 28,050 Motor scooter Husband $ 1,000 Vehicle 1 motor vehicle Wife $ 14,050 Home contents Wife $ 5,000 TOTAL: $ 2,332,814 b)Superannuation Assets:
Superannuation - Super Fund A Husband $ 196,525 Superannuation – Super Fund B and Benefits Scheme Husband $ 119,351 Superannuation – Super Fund C Wife $ 4,742 Superannuation – Super Fund D Wife $ 4,620 TOTAL: $ 325,238
At the time of final hearing, the property pool consists of the following liabilities:
Liability Amount Mortgage to Bank D secured over Property A (joint) $ 926,477 Motor vehicle loan (Husband) $ 13,705 Unpaid income tax including CGT on sale of Property C, Western Australia property (joint) $ 8,074 TOTAL Liabilities $ 948,256
In coming to the above pool, the Court has disregarded the various bank accounts held in the parties’ names with balances of less than $400, the husband’s current credit card debt and a debt owed by the wife to her brother for the payment of a credit card. The parties’ legal fees are likewise not included in the calculations.
Therefore, the total net pool at the time of hearing is assessed at $1,709,796 (of which $325,238 is superannuation).
The parties are almost ad idem that their contributions are equal. There is a slight discrepancy in their arguments in that the husband says there should be a small adjustment in his favour as a result of his post separation contributions, when contributions overall are assessed.
It is difficult to see how the parties’ contributions during their relationship were anything but equal. It is clear that the primary reason why the parties were able to live in the lifestyle they lived in and why they were able to purchase the properties they did was because of the husband’s employment. Likewise, but for the wife’s support of the husband, the family would not likely have been able to live as they did. Both the husband and the wife made sacrifices. The husband by being away from the family and the wife by raising the parties’ children in the absence of the husband while he was at (employment omitted).
However, the post separation contributions by the husband not only in terms of the financial contributions to the property of the parties, but also to the welfare of the family by provision of housing for the wife and the children to his exclusion, warrants a slight adjustment in his favour.
Overall, the contributions by the parties are assessed as 52% to the husband and 48% to the wife.
The parties decided upon a way of life together, which resulted in the husband pursuing a career and the wife not doing so. She took on the majority of child rearing and household responsibilities. There is no evidence however, which would suggest that the wife had intended on pursuing a particular career path and had given that up for the benefit of the family. Looking at the matter from this perspective is however not helpful.
The reality of the situation is that after 27 years of marriage the husband earns approximately $185,000 per annum and the wife earns approximately $40,000 per annum. The reasons for this are many and varied. It is highly unlikely, indeed almost completely improbable, that the wife will ever earn as much as the husband.
Both of the parties are 50 years old. They still have at least 15 years of working life ahead of them, if not more. If the husband remains in his current employment the disparity in their earning capacities will continue. There is no evidence that he would not do so for the foreseeable future.
The parties have agreed to split the husband’s (country omitted) pension on an equal basis. This will be a secure income for the wife going forward.
It was submitted on behalf of the wife that there ought to be a significant adjustment in the wife’s favour, inter alia, due to her substantial contributions to the husband’s earning capacity built up during the marriage, in line with the Full Court authority of B & B (No.2).[8] In that decision, the facts are different in that the disparity in the parties’ earning capacity was much higher. A significant adjustment was made by the Full Court in the exercise of its discretion on the particular facts of that case.
[8] [2000] FamCA 734
The Court is not persuaded by the submissions on behalf of either of the parties that the orders they each seek are just and equitable.
While the husband does have the greater earning capacity, it is not to the extent that a differential in the outcome of some $400,000 is warranted. The Court is mindful of the total pool and the effect of the orders the wife seeks, which in the Court’s assessment are not just and equitable. Naturally the flow on effect from separation is that parties’ circumstances change. There is no longer the pooling of resources and what might once have been possible is no longer possible. For example, there is no right to buy a house. The parties at present have a large mortgage which the husband meets. It is likely that the wife is highly unlikely to ever have the capacity to meet such a mortgage on her own, but she does have the capacity to rent or to meet a smaller mortgage.
Therefore an appropriate adjustment for 75(2) factors is assessed at 11%.
This will mean an overall adjustment will be 59% to the wife and 41% to the husband. Therefore, the wife will retain $1,008,780 and the husband will retain $701,016, resulting in a differential of some $308,000 between the parties. The wife will receive a cash adjustment as well as the benefit of a superannuation splitting order.
Inter alia, the wife is to receive:
Item
Value
Proceeds from sale of Property C, Western Australia, retained by the wife as interim property
$20,147
Vehicle 1 motor vehicle
$14,050
Home contents
$5000
TOTAL:
$39,197
Inter alia, the husband is to receive:
Item
Value
300 (employer omitted) shares
$957
Vehicle 2 (net)
$ 14,345
Motor scooter
$1,000
TOTAL
$ 15,402
This is a 72% split to the wife and 28 % to the husband of the non-realty and non-superannuation assets. Taking a broad brush approach, there will be no further adjustments as a result of this slight anomaly.
Otherwise, the parties upon the sale of the two jointly owned properties and payment of the mortgage and capital gain tax liability are to receive the net proceeds of sale as to 59% to the wife and 41% to the husband.
In respect of the superannuation assets, there will be a superannuation splitting order ensuring that the superannuation assets are likewise adjusted as to 59% to the wife ($191,890) and 41% to the husband ($133,348[9]). The wife is to receive:
[9] The husband’s superannuation makes up $315,876 of the $325,238 superannuation pool. The Super Fund A makes up 62.2% of this and the Super Fund B 37.8%. The splitting order reflects this.
Superannuation - Super Fund A Husband $ 113,562 Superannuation – Super Fund B and Benefits Scheme Husband $ 68,966 Superannuation – Super Fund C Wife $ 4,742 Superannuation – Super Fund D Wife $ 4,620 TOTAL: $ 191,890
Conclusion
In all of the circumstances and for all of the reasons set out above orders will be made as set out in the forefront of these reasons.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 8 June 2018
a. It is difficult to understand why the wife’s trial affidavit read as it did. For example, the last paragraph of the affidavit read “I humbly request this honourable Court grant the Orders sought in my Application in a Case filed herein.” In today’s age of digital technology there is no excuse for such poor editing of documents. In addition, the affidavit was replete with inadmissible and irrelevant material. In a decision of the NSW Supreme Court, Kinda Kapers Charlestown Pty Ltd v Newcastle Neptunes Underwater Club Inc and Ors [2007] NSWSC 329 at [78], White J held: “The party’s legal representatives have a responsibility to ensure that affidavits are prepared with regard to the rules of evidence.”
b. The husband’s trial affidavit was drafted in a similar manner to the wife’s, albeit with more care.
c. The rules of evidence apply to property adjustment proceedings. The first hurdle to overcome is that the evidence must be relevant. Next, hearsay evidence is not admissible. Section 59(1) Evidence Act1995 (Cth) reads: “Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.” The relevant section of the Act even provides examples of what hearsay evidence is for those who have trouble understanding it. As noted in Odgers Uniform Evidence Law (12th ed, Thomson Reuters) at [EA.59.50]: “The rule applies to testimony from a witness as to the making of the previous representation and to a document in so far as it contains the previous representation. It makes no difference whether the witness testifies to a previous representation made by some other person or to the witness’s own representation.” (citation omitted) To have included in an affidavit hearsay evidence about conversations or emails is the very epitome of hearsay. The purpose of such evidence in these proceedings is clearly the hearsay purpose. Unless an exception to the hearsay rule applies, such as for example an admission for the purposes of s81, the evidence is not admissible. Just because it is evidence of a conversation between the parties to the proceeding, it does not ipso facto become admissible. More is needed. It is for the parties to overcome these evidentiary burdens, to prove that evidence is relevant and otherwise not inadmissible.
d. While the parties through their Counsel advised the Court that they were proceeding on the basis that the Court would give appropriate weight to the evidence, such an approach is not of particular assistance to the Court. What is of assistance is ensuring that the affidavits read in the proceedings are prepared with regard to the rules of evidence.
e. As the High Court Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [35] has held:
The uncritical reception of inadmissible evidence, often in written form and prepared in advance of the hearing is to be strongly discouraged. It tends to distract attention from the real issues, give rise to pointless cross-examination and cause problems on appeal where it may be difficult to know the extent to which the inadmissible material influenced the judgment at first instance.
Key Legal Topics
Areas of Law
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Family Law
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Property Law
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Equity & Trusts
Legal Concepts
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Remedies
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Costs
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Injunction
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Fiduciary Duty
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Constructive Trust
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