Viney and Viney

In *Viney and Viney*, Bennett J considered an application by the husband seeking to rely on affidavit evidence from an accountant, Mr G, in support of his enforcement application. The wife opposed the husband's attempt to introduce this evidence.

The central legal issue before the court was whether the husband should be granted leave to file affidavit evidence from Mr G, an accountant, in support of his enforcement application, notwithstanding the requirements of the Family Law Rules (FLR). Specifically, the court had to determine if it ought to retrospectively grant permission for the husband to rely on Mr G's affidavits, given that no prior leave had been obtained and no provision in the FLR expressly permitted such filing.

Bennett J dismissed the husband's application, finding it misconceived. The court reasoned that Rule 5.02 of the FLR mandates that an applicant must file an affidavit stating the facts relied upon in support of the orders, and that expert or opinion evidence is not to be filed in this manner. Order 15.05 further stipulates that an affidavit can only be filed without leave if a rule or court order permits it, which was not the case here. The husband's arguments that the wife had not previously objected to Mr G's evidence, that Mr G had reviewed documents produced by subpoena, or that a prior order had directed the filing of final affidavits were found to be immaterial to the question of whether leave should be granted. The court emphasised that the wife could not waive compliance with the FLR, and that the rules did not preclude the husband from obtaining advice from experts (referred to as "shadow experts"). Ultimately, the court declined to grant retrospective permission for Mr G's affidavits, stating that the enforcement of a machinery provision in a final property order requires the court to oversee its operation, and that the accountant's evidence would be tested through cross-examination.

The court ordered that the husband's application and the wife's response be dismissed. The husband was ordered to pay the wife's costs of and incidental to the application on a party/party basis, with provisions for the itemisation and assessment of those costs. The court also directed that offers of settlement be exchanged and scheduled further enforcement proceedings, estimated to take between five and eight days.