Procedure – husband’s failure to adduce evidence-in-chief…

family law casenotes

…should not have precluded him from cross-examining wife, and was a denial of natural justice

In Morgan & Valverde [2022] FedCFamC1A 133 (31 August 2022), Austin J heard a de facto husband’s appeal from property orders after a childless de facto relationship of nine years.

The appellant failed to file and serve any evidence before the trial and the only evidence at trial was that of the respondent. Orders were made for a division 57.5:42.5 in favour of the appellant.

On appeal, the de facto husband argued that he was denied natural justice and procedural fairness.

Austin J said (from [18]):

“… [T]he appellant [has no] … reasonable complaint about the trial progressing without his evidence, given his protracted failure to file and serve [his evidence] … He was not merely late filing evidence. He did not file any evidence at all …

[19] … [D]uring the discussion which ensued about the need for the trial to proceed without further delay, the primary judge told the appellant he would not be able to cross-examine the respondent. Ostensibly, that was only because he failed … to file and serve his evidence-in-chief. …



[35] The appellant had no absolute right to cross-examine the respondent – only an absolute right to a fair trial. However … it would be a rare case in which the refusal of a party’s request to cross-examine a material witness at final trial would not manifest the deprivation of procedural fairness (Naparus & Frankham [2020] FamCAFC 32 …).


[37] Although the appellant did not specifically ask to cross-examine the respondent, he had already been told he would not be allowed to do so and, absent legal representation, he meekly did not contest the ruling. Denying the appellant the chance to cross-examine the respondent, at least without any adequate explanation for why and without giving him the chance to be heard about the ruling, denied him natural justice and was an error of law.


[40] Had the appellant cross-examined the respondent, it might have made no difference at all, but that is not the test. … It follows that the error was material and there is no option but to remit the proceedings for re-hearing.”


Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (

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