Shamon & Shamon (No 13)

Case [2024] FedCFamC1F 506

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Shamon & Shamon (No 13) [2024] FedCFamC1F 506

File number: SYC 2375 of 2021
Judgment of: CHRISTIE J
Date of judgment: 30 July 2024
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application to adduce further evidence – Expert evidence – Valuation evidence – Value of overseas property in which the applicant contends the respondent has a beneficial interest – Where the application is part-way through the trial – Where the evidence is non-compliant with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and inadmissible – Valuation evidence rejected – Revisiting of earlier evidentiary rulings – Leave granted to the applicant to adduce further lay evidence. 
Legislation:

Family Law Act 1975 (Cth) Pt VII and Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 7.1, rr 7.02 7.04, 7.10, 7.11, 7.13 7.22, 7.23

Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Shamon & Shamon (No 12) [2024] FedCFamC1F 69

Division: Division 1 First Instance
Number of paragraphs: 55
Date of last submission: 29 July 2024
Date of hearing: 25 July 2024
Place: Sydney
Counsel for the Applicant: Mr A Schonell
Solicitor for the Applicant: Barkus Doolan Winning
Counsel for the First Respondent: Mr Schatz
Solicitor for the First Respondent: Lawbridge Lawyers & Consultants
The Second Respondent: Excused from participating
The Third Respondent: Did not participate

ORDERS

SYC 2375 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SHAMON

Applicant
AND:

MS SHAMON

First Respondent

MR B SHAMON

Second Respondent

MS G SHAMON

Third Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

30 JULY 2024

THE COURT ORDERS THAT:

1.The applicant have leave to adduce evidence from Mr AN filed 24 April 2024.

2.The applicant have leave to tender MS92 and 93.

3.The Application in a Proceeding filed 18 July 2024 is otherwise dismissed.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym Shamon & Shamon (No 13) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CHRISTIE J:

  1. This is an application for leave to adduce further evidence part way through a trial. The applicant husband is the first respondent in substantive parenting and property proceedings under Pt…

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Shamon & Shamon (No 13) [2024] FedCFamC1F 506
Case
[2024] FedCFamC1F 506
Decision Date

CaseChat Overview and Summary

In the case of Shamon & Shamon (No 13), the applicant, Mr Shamon, sought to introduce additional evidence during the proceedings concerning the valuation of property in Country UU, which he contended the respondent, Ms Shamon, had a beneficial interest in. The application was part-way through the trial and included expert evidence, lay evidence, and specific exhibits. The court had to decide whether to allow the introduction of this new evidence, which was not compliant with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, and to assess its admissibility.

The court addressed the non-compliance of the valuation evidence with the Rules, noting that the instructions to the expert were not in writing, contrary to the requirements of the Rules. This lack of compliance made the evidence inadmissible. The applicant argued for the admission of the evidence despite its non-compliance, but the court rejected this argument, stating that the time for considering the admissibility of evidence is when the application to rely on it is made, allowing both parties to know what material is before the Court. The court found that the respondent's concerns about prejudice and admissibility were valid and that the Rules should not be disregarded.

The court granted leave for the applicant to adduce further lay evidence from Mr AN and exhibits MS92 and 93. However, the application to introduce the valuer's evidence was dismissed due to its non-compliance with the Rules. The court's decision was based on the necessity to adhere to the Rules to ensure transparency and the opportunity for both parties to test the evidence.

The court's orders allowed the applicant to present evidence from Mr AN and exhibits MS92 and 93 but dismissed the application to introduce the valuer's evidence. The form of the order is subject to review and potential variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

SYC 2375 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SHAMON

Applicant

AND:

MS SHAMON

First Respondent

MR B SHAMON

Second Respondent

MS G SHAMON

Third Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

30 JULY 2024

THE COURT ORDERS THAT:

1. The applicant have leave to adduce evidence from Mr AN filed 24 April 2024.

2. The applicant have leave to tender MS92 and 93.

3. The Application in a Proceeding filed 18 July 2024 is otherwise dismissed.

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).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

Conceptually there are three distinct pieces of evidence to consider:(1)The evidence of the Country UU valuer and related evidence of the Country UU lawyer and the translator;(2)The evidence of Mr AN; and(3)The evidence in exhibits MS90-93 of the husband’s affidavit.Valuation evidence The applicant says, and I accept, that the issue of whether or not the wife is beneficially entitled to property in Country UU has been a live issue in the proceedings for some time. The applicant says that if I accept, as he contends, that the wife is beneficially entitled to the property he has identified then it follows that it would be appropriate that I have evidence as to its value. Again, the submission is accepted – but not without some caveat. The respondent says that there are two main bases upon which I would reject the evidence of the valuer – the first is the prejudice occasioned to the wife by its late filing and the second is the difficulties which she identifies with its admissibility. The applicant submitted that I could defer questions of admissibility. In the circumstance of this case, I do not accept that submission. I am being asked to consider whether or not to admit expert evidence mid-way through a trial – the time for consideration of whether that evidence is admissible is at the time the application is made to rely on it so that both parties know what material is before the Court and in what form. The respondent submitted that the affidavit of the valuer and the attached report did not comply with the Rules. I agree. The applicant said either the Rules could be dispensed with or the defects could be cured in due course. Theoretically, both propositions are correct. It is necessary to examine the nature of the defects and the questions about admissibility to determine which course is appropriate. As to lack of compliance with the Rules – the Rules require the instructions to the expert to be in writing. This is for sound reasons. The brief to the expert should be clear and unambiguous. This is even more the case in circumstances where a party seeks to engage an adversarial expert as opposed to a single expert. The instructions to the expert were not in writing. In fact, there may have been some instructions in writing (see the references to “the residential units provided to [the valuer] via whatsapp” at annexure B to the affidavit of Mr AQ) but those are not before the Court. This is significant since transparency in the instructions provided assist a party to test the evidence. An expert is required to comply with r 7.13(2)(a) of the Rules. There is no evidence that this has occurred. Other than the alternate relief sought in this application, there was no attempt to bring an application to appoint a single expert however I accept, as the husband surmised in his affidavit, it may not have occurred by agreement. But, had such an application been brought then the wife would have had an opportunity to participate – should she have elected – in the qualification and instruction of the expert.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

As to the consequences of non-compliance with the Rules, r 7.23 provides:If an expert witness does not comply with these Rules, the court may do any of the following:(a) order the expert witness to attend court;(b) refuse to allow the expert’s report or any answers to questions to be relied on;(c) allow the report to be relied on but take the non‑compliance into account when considering the weight to be given to the expert witness’s evidence;(d) take the non‑compliance into account when making orders for:(i) an extension or abridgment of a time limit; or (ii) a stay of the proceeding; or (iii) interest payable on a sum ordered to be paid; or (iv) costs.CONSIDERATION The husband’s application to adduce further evidence mid-way through the hearing is opposed by the respondent wife. The other parties to the litigation did not take any position and did not participate in the hearing. Conceptually there are three distinct pieces of evidence to consider:(1)The evidence of the Country UU valuer and related evidence of the Country UU lawyer and the translator;(2)The evidence of Mr AN; and(3)The evidence in exhibits MS90-93 of the husband’s affidavit.Valuation evidence The applicant says, and I accept, that the issue of whether or not the wife is beneficially entitled to property in Country UU has been a live issue in the proceedings for some time. The applicant says that if I accept, as he contends, that the wife is beneficially entitled to the property he has identified then it follows that it would be appropriate that I have evidence as to its value. Again, the submission is accepted – but not without some caveat. The respondent says that there are two main bases upon which I would reject the evidence of the valuer – the first is the prejudice occasioned to the wife by its late filing and the second is the difficulties which she identifies with its admissibility. The applicant submitted that I could defer questions of admissibility. In the circumstance of this case, I do not accept that submission. I am being asked to consider whether or not to admit expert evidence mid-way through a trial – the time for consideration of whether that evidence is admissible is at the time the application is made to rely on it so that both parties know what material is before the Court and in what form. The respondent submitted that the affidavit of the valuer and the attached report did not comply with the Rules. I agree. The applicant said either the Rules could be dispensed with or the defects could be cured in due course. Theoretically, both propositions are correct. It is necessary to examine the nature of the defects and the questions about admissibility to determine which course is appropriate. As to lack of compliance with the Rules – the Rules require the instructions to the expert to be in writing. This is for sound reasons. The brief to the expert should be clear and unambiguous. This is even more the case in circumstances where a party seeks to engage an adversarial expert as opposed to a single expert. The instructions to the expert were not in writing. In fact, there may have been some instructions in writing (see the references to “the residential units provided to [the valuer] via whatsapp” at annexure B to the affidavit of Mr AQ) but those are not before the Court. This is significant since transparency in the instructions provided assist a party to test the evidence.