Pearce & Pearce

[2022] FedCFamC1F 170

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Pearce & Pearce [2022] FedCFamC1F 170

File number(s):	SYC 2654 of 2017
Judgment of:	CAMPTON J
Date of judgment:	7 March 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Ex tempore reasons for judgment – Where the husband seeks leave to rely on two prior, additional affidavits at trial – Where explicit trial directions had been made as to the filing of a single, consolidated affidavit – Leave refused
Division:	Division 1 First Instance
Number of paragraphs:	5
Date of hearing:	7 March 2022
Place:	Sydney
Counsel for the Applicant:	Mr Scarlett
Solicitor for the Applicant:	Hudson Law Pty Ltd
Counsel for the Respondent:	Mr Roberts
Solicitor for the Respondent:	Barkus Doolan
Counsel for the Intervener:	Mr Stapleton
Solicitor for the Intervener:	Watts McCray

ORDERS

SYC 2654 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PEARCE

Applicant

AND:

MS PEARCE

Respondent

MS V PEARCE

Intervener

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	7 MARCH 2022

THE COURT ORDERS THAT:

1.Leave for the husband to rely on his affidavits filed on 22 May 2019 and 3 December 2019 for the purpose of the final hearing commencing on 7 March 2022 is refused.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Pearce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

1. The husband, Mr Pearce (“the husband”), makes an oral application on the first morning of the trial event listed in this matter commencing on 7 March 2022, to rely on two affidavits filed in the proceedings on 22 May 2019 and 3 December 2019. Ms Pearce (“the wife”) resists his application for leave. The husband’s mother, Ms V Pearce (“the intervener”) neither supports nor resists the application.

2. By way of the trial directions made by me on 2 November 2021, each of the husband and the wife were directed to file a single consolidated trial affidavit relevant to their case. They were otherwise directed to file an affidavit of each other witness upon which they sought to rely for the purposes of the trial. The intervener, by way of leave, was permitted to rely on earlier affidavits that have been filed in the proceedings, in circumstances where it seemed to be an agreed fact for trial management that she had been ready to run her case since 2019.

3. I have heard submissions today by counsel for the husband as to why leave ought to be granted to rely on the two earlier affidavits. I observe that one of the affidavits sought to be relied upon, for the large part, is in reply to an affidavit of the wife sworn in 2019 that is not read in the proceedings.

4. In the circumstances, I refuse the application. The husband has been on notice since 2 November 2021 of the requirement for him to file a single consolidated trial affidavit relevant to his case for the purposes of this hearing event. I am not satisfied that he has identified that he would be otherwise prejudiced by:

   (a)Not being able to read his affidavits filed on 22 May 2019 and 3 December 2019; and more importantly,

   (b)Should he wish to do so, he has the opportunity to rely on his affidavit sworn and filed in compliance with the trial management directions, being his affidavit filed on 3 February 2022.

5. I make the order set out herein.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.

Associate:

Dated:       22 March 2022