Sebastian & Sebastian (No 2) - [2013] FamCA 19

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN (NO. 2)

[2013] FamCA 19

FAMILY LAW – PRACTICE AND PROCEDURE – Ruling on admissibility of affidavit

Family Law Act 1975 (Cth)

APPLICANT:

Ms Sebastian

RESPONDENT:

Mr Sebastian

FILE NUMBER:

MLC

6522

2010

DATE DELIVERED:

23 January 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Young J

HEARING DATE:

23 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC with him Ms Johns

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr North SC with him Mr Gates

SOLICITOR FOR THE RESPONDENT:

Moores Legal

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6522 of 2010

Ms Sebastian

Applicant

And

Mr Sebastian

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This trial has reached the point of evidence where I am about to hear from a Chartered Accountant, Mr F, who is a partner of a Financial Services Firm. He filed an affidavit on 5 December 2012. Included in that affidavit were his professional qualifications and experience and I had no objection taken to those matters.
Annexed was a report that he had undertaken upon the instructions of the wife and her solicitors, which essentially was to provide forensic accounting services to determine the financial position of the husband, to establish how the proceeds of sale of Business Y were applied and to ascertain expenditure since the date of separation, to assess income and to ascertain the current asset position of the parties or their related entities.
The report itself is a document of approximately 20 pages. Annexed to that report and forming part of the very large folder of documents are statements, dollar sums and documents that are relied upon by the author of the report in expressing his views and reaching his conclusions.
Lest it otherwise hereafter be observed by others I do understand that the document is voluminous and certainly does not comply with Family Law Rule 15.12. I made that point at the earliest opportunity and again at the commencement of proceedings. It does seem that practitioners in this case did not either read or apply the Rules. Senior Counsel for the husband has objected to the admissibility of the affidavit and its annexures, to evidence given by Mr F and/or to reliance by the wife upon his report and conclusions.
Mr North had filed on 11 January 2003 his written notice of objection, which is taken to the whole of the affidavit and, accordingly, to all of the annexures to the affidavit. I have read carefully the 11 paragraphs of that objection, though, with the passage of time, the husband has now had a more than reasonable opportunity to examine its contents. Indeed, the husband has exhaustively responded to the report and identified many errors, omissions or additions…

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 Sebastian & Sebastian (No 2)

Details

AGLC: Sebastian & Sebastian (No 2) [2013] FamCA 19
Case: [2013] FamCA 19
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms. Sebastian (the applicant) and Mr. Sebastian (the respondent) were engaged in proceedings concerning financial matters. The dispute before the court specifically concerned the admissibility of an affidavit sworn by a chartered accountant, Mr. F, and its accompanying report and annexures, which had been prepared on the instructions of the applicant.

The primary legal issue before the court was whether the affidavit, report, and annexures of Mr. F were admissible as evidence, despite objections raised by the respondent. These objections related to the admissibility of the evidence, the opinions expressed within the report, and the content of certain documents annexed to the affidavit, which were alleged to breach the Commonwealth Evidence Act and Family Law Rule 15.12. The respondent also argued that the documents were voluminous and did not comply with procedural rules.

Justice Young, in his ex tempore reasons, acknowledged the respondent's objections and the non-compliance with Family Law Rule 15.12. However, he found that the respondent had had a more than reasonable opportunity to examine the report and had exhaustively responded to it in a reply affidavit. The court considered the chain of correspondence and previous orders that indicated the report's use in discussions and mediation. Given the stage of the trial, the relevance of the report to various financial issues, and the husband's comprehensive response which demonstrated familiarity with the report and ensured no impingement on natural justice, the court ruled that the use of and reliance upon Mr. F's report and its annexures would be permitted.

Orders