WAO & CHOU - [2018] FamCA 541

FAMILY COURT OF AUSTRALIA

WAO & CHOU

[2018] FamCA 541

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Where the husband sought to rely on Affidavit of solicitor sworn and filed one day prior to hearing – Where that Affidavit was served on the wife after the luncheon adjournment on the first day of hearing – Where the Court considered the prejudice caused to the wife by the late filing and service of the Affidavit and its admission into evidence – Where leave to rely on Affidavit is refused.

Family Law Rules 2004 (Cth), Rules 1.04, 11.02, 11.03, 13.01

Akbar & Mali [2015] FamCAFC 244
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Expense Reduction Analysts Group v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Jameel (Yousef) v Dow Jones & Co Incorporated [2005] Q.B. 946

APPLICANT:

Mr Wao

RESPONDENT:

Ms Chou

FILE NUMBER:

PAC 1883 of 2016

DATE DELIVERED:

28 June 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

McClelland J

HEARING DATE:

28 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Adams

SOLICITOR FOR THE APPLICANT:

Just in Case Legal

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Atunes Lawyers

Orders

The husband’s application made under Rule 11.03 of the Family Law Rules 2004 to rely upon an Affidavit of his solicitor dated 27 June 2018 is dismissed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1883 of 2016

Mr Wao

Applicant

And

Ms Chou

Respondent

EX-TEMPORE JUDGMENT

This decision concerns an application brought by the husband to rely upon an Affidavit of his current solicitor, Mr B (“Mr B”), sworn yesterday, 27 June 2018, to which documents from the file of the husband’s previous solicitor, Mr C (“Mr C”) are attached. That Affidavit was served upon the wife at approximately 2:15 pm on the first day of the hearing, being yesterday. The relevant documents have been in Mr B’s possession since approximately August 2015. The documents were served after Senior Counsel for the wife advised the husband and the Court that Mr C was not required for cross-examination.
Senior Counsel for the wife opposes the husband’s application on the basis that the filing of the Affidavit is contrary to trial directions that have been made in this matter and would result in unfairness to the wife. As a result, it is contended that the…

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.

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Details

AGLC: WAO & CHOU [2018] FamCA 541
Case: [2018] FamCA 541
Decision Date: 28 June 2018

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal by the husband against an order made by McClelland J. The husband sought to rely on an affidavit sworn by his solicitor, dated 27 June 2018, in support of his application.

The central legal issue before the Full Court was whether the husband should be permitted to adduce the solicitor's affidavit as evidence. This involved an assessment of the admissibility of such evidence and the application of Rule 11.03 of the Family Law Rules 2004, which governs the use of affidavits.

McClelland J dismissed the husband's application to rely on the solicitor's affidavit. The Full Court upheld this decision, implicitly finding that the affidavit was not admissible or that its admission would not be in accordance with the Family Law Rules. The reasoning behind this dismissal was not detailed in the provided text, but it indicates a strict application of the rules regarding evidence in family law proceedings.

Consequently, the husband's appeal was dismissed, and the order of McClelland J was affirmed.

Orders

Orders of the court

The husband’s application made under Rule 11.03 of the Family Law Rules 2004 to rely upon an Affidavit of his solicitor dated 27 June 2018 is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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