Jaymes & Richa [2025] FedCFamC1A 207 (13 November 2025)

1. The appellant had failed to comply with directions for the filing of affidavit material ultimately leading to his response being struck out on 12 September 2022 (at [1] and see Richa & Jaymes & Ors [2022] FCWA 193). The primary judge refused to allow the appellant to rely upon an affidavit he sought to provide on the day of the hearing. The primary judge explained to the appellant at the time of the hearing that he had "had ample opportunity to file affidavit material" (Transcript 27 May 2025, p.15 lines 36-45).
2. The appellant has not shown that the primary judge was in error in refusing to allow him to rely upon an affidavit first produced on the day of the final hearing in circumstances where his previous failures to comply with directions for the preparation of the matter had led to his response being struck out.
3. At the final hearing the appellant was given an opportunity to make submissions and when it was apparent that he sought to have the primary judge recuse himself, the primary judge alerted him to the need to make an application to that effect. The appellant then made the application orally, which the primary judge refused.
4. The appellant had given no notice that he required any of the witnesses for cross-examination (as required by r 243 of the Family Court Rules 2021 (WA)), nor did he seek leave to cross-examine any of the respondent's witnesses, despite this being drawn to his attention by the primary judge who noted that the witnesses were present at court ([32] and Transcript 27 May 2025, p.14 lines 17-30). He could not have cross-examined the respondent as she had suffered permanent brain damage. He was aware of this well before the trial as the respondent's brother had been appointed her litigation guardian as a result of her injuries. Her affidavit was admissible as it fell within the exception to the hearsay rule in s 79C of the Evidence Act 1906 (WA). It remained open to the appellant to make submissions as to the weight that the primary judge ought to have placed on the affidavit evidence: see generally s 79D and s 79E of the Evidence Act. The primary judge took into account that the affidavit evidence was not tested by cross-examination (at [61]).
5. The appellant provided no evidence on the appeal that he was unaware of his procedural rights nor as to his "cognitive condition". The matter has had a long history of interlocutory applications, as set out in the primary judge's reasons for judgment, which incorporated the following earlier judgments: Richa & Jaymes & Ors [2022] FCWA 193, Richa & Jaymes & Ors [2022] FCWA 83, Richa & Jaymes & Ors [2022] FCWA 42, and Richa & Jaymes & Ors [2021] FCWA 186.
6. The appellant has not identified any failure by the primary judge to afford him procedural fairness in the conduct of the hearing, nor that the primary judge erred by considering the respondent's affidavit in the circumstances of this case.
7. The allegations in these grounds are not made out.

1. The respondent's financial statement filed on 23 August 2019 sets out, at item 53, "Other personal liabilities" of "E $33,000" described as "Estimated ATO Capital Gains Tax due from the sale of [Property D] in August 2018".
2. However, in the respondent's chronology in the "Papers for the Judicial Officer" filed on 8 October 2024 for the final hearing, she set out that the capital gains tax "was waived by the ATO".
3. The primary judge noted that the respondent sought orders that the appellant indemnify her for any capital gains tax incurred as a result of her sale of the [Property D], but that "No submissions were directed to that proposal at trial and it was not actively pursued" (at [28]). The primary judge does not discuss this debt thereafter in the judgment, nor was it referred to in the summary of the orders to be made at the conclusion of the judgment at [122] (quoted above at [10]).
4. It appears that the primary judge overlooked the inclusion of this Order in the draft Minute of Order sought by the respondent, which his Honour used when giving judgment. We are satisfied that his Honour did not intend to make this particular Order and that it ought to have been corrected under the slip rule. As was said in Adler & Parrow [2024] FedCFamC1A 192:
   1. ... It is necessary for an appellant to exhaust his or her other remedies before seeking appellate intervention: see Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10 at [5]; Zan & Wen (No 2) (2023) FLC 94-513 at [69]; and Wall Street Developments Pty Ltd v Egerton [2010] QDC 44. Where it is clear that the complaint relates only to a drafting slip rather than an appealable error, the ground of appeal should be dismissed.
5. This court has power to amend orders pursuant to the slip rule: see r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and .

(1936) 55 CLR 499