Too Late on Day One: Why a Husband's Last-Minute Affidavit About House Defects Was Refused at the Final Hearing

In Lyric & Lyric [2026] FedCFamC1F 623, the Court dealt with a husband's oral application, made as he began his evidence on the first day of a five-day property trial, for leave to rely on an affidavit he had filed at 10.32am that morning about alleged structural defects in a Queensland property he bought in late 2022 ([2]–[3], [6], [9]). The result: Anderson J dismissed the application in ex tempore reasons delivered the next day (Order 1; [1], [24]). The important point is that the husband had known about the alleged defects since 2024 and early 2025, had filed two trial affidavits and had been before the Court many times without raising them, so the material "could have with reasonable diligence been disclosed and discovered earlier" ([18]–[24]). In any event, the quotation he relied on was provisional and "wholly unhelpful", letting it in would have caused "clear prejudice" to the wife, and the alleged defects could still be put to the single expert valuer in cross-examination ([25]). All paragraph references below are to the judgment.

Why it matters: Final hearings run on timetables, and every filing deadline is set for a reason. A party who sits on an issue that could affect the value of a major asset, then tries to bring it in on the morning of trial, risks being shut out of relying on that evidence. This judgment also shows how a judge tests an explanation for delay: against everything else the party managed to do in the meantime ([21]).

🧩 Facts and Issues

The parties and the proceedings

• This is a property case under s 79 of the Family Law Act 1975 (Cth). The wife is the applicant and the husband the respondent (cover page; [2]). The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).
• The parties began living together in July 1999, married in 2005 and physically separated on 11 October 2021. The wife says they effectively separated under one roof in July 2019 ([4]).
• In late 2022, the husband bought a property at "Suburb D" in Queensland ([6]). In January 2023, he moved to Queensland with the children ([5]).
• The final hearing was listed from 14 to 18 September 2026 ([2]).

A long road to a valuation

The judge set out the procedural history because the application turned on it ([7]–[8]):

• 30 January 2023: a Judicial Registrar first ordered the parties to obtain single expert evidence about real property under Division 7.1.2 of the Rules ([7(a)]).
• 10 July 2023: similar orders were made again. The judge inferred that the parties had not complied with the earlier orders ([7(b)]).
• 21 February 2025: the case was transferred to Division 1 ([7(c)]).
• 8 August 2025: the judge listed the case for a final hearing starting 2 February 2026. Issues about the Suburb D property were not raised by the husband's solicitor, even though valuations were a topic at the time ([7(d)]). The husband was to file his trial affidavits by 23 January 2026 ([17(a)]).
• 30 January 2026: the February hearing was vacated because the single expert had not reported on the value of various entities ([7(e)]).
• 2025–2026: the case came back before the judge several times, including on the husband's own Application in a Proceeding about payments to the Australian Taxation Office ([7(e)]–[7(f)], [21(c)]).
• 23 July 2026: at the parties' invitation, the judge ordered each of them to file consolidated affidavits by 4.00pm on 24 August 2026 ([17(b)]).

The judge said the parties had "been afforded significant assistance from the Court" ([8]).

The alleged defects

• According to the husband's late affidavit, in 2024 he noticed that "the bedroom door jammed and cracks appeared in the bathroom and skirting boards", but considered the issues "minor". In early 2025, a cyclone "exposed many water issues" and made the existing damage worse ([9]).
• Despite the orders going back to January 2023, it appears the parties did not engage a single expert valuer for the Suburb D property until 14 August 2026, using a standard letter of instruction ([10]).

On 31 August 2026, with the consent of the wife's solicitor, the husband sent the valuer a detailed letter listing these alleged problems ([11]):

• a leaking rooftop deck, which he estimated would cost $90,000 to fix;
• movement in the centre of the home, said to have sunk 20mm, which he estimated would cost about $170,000 to fix; and
• a "potential termite issue".

What happened next ([12]–[15]):

• He asked the valuer to finalise the report on the current timetable, applying its own professional judgment ([12]), and said he was still getting a quote ([13]).
• Shortly afterwards, the husband told the valuer that rectification would cost around $260,000. On 2 September 2026 the valuer said it could not proceed, because these costs "have been estimated by one of the owners and are therefore not independent" ([14]).
• The husband also gave the wife a quotation estimating structural repairs alone at $190,000 to $250,000, which on its face required an "inspection by a qualified engineer" before it could be finalised ([15(a)]). On 7 September 2026 the wife questioned whether the business that gave the quote was independent of the husband. The husband gave no evidence about how the quote was obtained ([15(b)]).
• The husband filed his affidavit at 10.32am on 14 September 2026, the first day of the trial, and sought leave to rely on it at the start of his evidence ([3]).

Issue

Should the husband have leave to rely on the content and annexures of his affidavit filed on the first morning of the final hearing ([3])?

⚖️ Applicable Law – Legislation, Regulations, Rules

• Family Law Act 1975 (Cth), s 79: the property settlement jurisdiction in which the trial was being run ([2]).
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Division 7.1.2: the single expert rules under which valuation orders were made from January 2023 ([7(a)]–[7(b)]).
• Rules, Divisions 7.1.4 to 7.1.6: these were enclosed with the letter of instruction to the single expert valuer ([10]).
• Rules, r 7.11: the judge said that, to the extent the application was really one to adduce evidence from an expert witness, the husband had "wholly failed to comply" with this rule ([25(c)]).
• The timetabling orders of 8 August 2025 (trial affidavits due 23 January 2026) and 23 July 2026 (consolidated affidavits due 24 August 2026) ([17]).
• Family Law Act 1975 (Cth), Part XIVB and s 114Q(2): the publication restrictions and the approval of the pseudonym (cover notes).

The reasons do not set out a formal legal test for granting leave to rely on late evidence. The decision rests on the chronology, the orders made, the Rules and the evidence ([7]–[25]).

📌 Precedents Relied On

No cases were cited. These were short ex tempore reasons, delivered orally and settled from the audio recording ([1]). The judge relied on the procedural history, the timetabling orders, the Rules and the evidence. We have not added any outside authority.

🧠 Analysis

Issue

On the first day of trial, could the husband put on new evidence about alleged defects that he estimated would cost around $260,000 to fix, when the wife had not had a chance to test it ([3], [14]–[15], [25(b)])?

Rule

The judge did not frame a formal test. The considerations that decided the application were:

• whether the information "could have with reasonable diligence been disclosed and discovered earlier" ([24]);
• whether the party's explanation for the delay should be accepted ([20]–[21]);
• the probative value of the evidence ([25(a)]);
• prejudice to the other party, including the chance to test the evidence and get evidence in reply ([25(b)]);
• compliance with the Rules for expert evidence ([25(c)]); and
• whether the issue could be dealt with another way at trial ([25(d)]).

Application

The chronology did the heavy lifting

The judge set out the history so a reader could see that the case had been listed many times at the parties' request and that the parties had received "significant assistance from the Court" ([8]). Both filing deadlines, 23 January 2026 and 24 August 2026, came after the husband says he noticed the cracks and jammed door in 2024 and after the early-2025 cyclone that he says made the damage worse ([17]–[18]).

Two trial affidavits, and nothing about the defects

Before the late affidavit, the husband said "nothing whatsoever" about the defects in his affidavit of 25 August 2026, or in the affidavit he filed after the 8 August 2025 orders ([19]). The wife's counsel said it was only "recently" that the husband had raised the alleged defects with her ([23]).

The explanation for the delay was not accepted

The husband's affidavit explained that, given his "mental health issues, work commitments, care responsibilities for the children, these proceedings generally and my recent relationship breakdown", the structural damage "has not been a pressing consideration", and that he "should have addressed these issues earlier" ([20]).

The judge did not accept that explanation ([21]), because:

• the husband had filed two affidavits for the final hearing, on 28 January 2026 and 25 August 2026 ([21(a)]);
• between 8 August 2025 and 23 July 2026, the case had been the subject of "no less than seven orders and five hearings" ([21(b)]); and
• despite the pressures he described, the husband was able to file an Application in a Proceeding on 17 April 2026 about his debt to the Australian Taxation Office ([21(c)]).

The Building Commission document undercut "not a pressing consideration"

The judge was given a document from the Queensland Building and Construction Commission from early 2024, which showed that the husband had turned his mind to remedial works as early as 2024. The judge said the alleged defects were "clearly" significant to the husband by March 2024, "because he made a complaint to the Commission" ([22]).

Be careful not to overstate this. The judge did not find that the husband's personal circumstances were untrue. The finding was that, on these facts, they did not explain why he never raised the defects in time, given what else he had done during the same period ([21]).

Reasonable diligence was enough to dismiss the application

"For these reasons alone", the judge dismissed the application: the information "could have with reasonable diligence been disclosed and discovered earlier" ([24]).

Even if that was wrong, the evidence would still not have been admitted

The judge gave further reasons in case the first conclusion was wrong ([25]):

• No probative value. The quotation was "a provisional quotation only", gave broad estimates and said an engineer's inspection was needed before it could be finalised. It was "wholly unhelpful" ([25(a)]).
• Clear prejudice to the wife. Because of the husband's "dilatory conduct", the wife had no opportunity to test the quotation or get her own evidence ([25(b)]).
• Non-compliance with the expert evidence rules. To the extent the application was really to adduce expert evidence, the husband had "wholly failed to comply" with r 7.11 ([25(c)]).
• There was another way. The single expert valuer would shortly produce a valuation. The husband's senior counsel could put the alleged defects to the expert and ask whether they affect the property's value ([25(d)]).

Conclusion

The application was dismissed because the alleged defects were known to the husband well before both filing deadlines, his explanation for the delay was not accepted, and the material could have been put forward earlier with reasonable diligence ([18]–[24]). The alternative reasons confirm that the late evidence would not have been admitted anyway: the quotation was provisional, the wife would have been prejudiced, the expert evidence rules were not followed, and the issue could be explored with the single expert ([25]).

The judgment does not decide whether the alleged defects exist or whether they affect the property's value. Those questions were left to the single expert's valuation and cross-examination at trial ([25(d)]).

🧠 Take-Home Lesson

• If it matters to value, put it before the expert early. The husband knew of the alleged problems by 2024 and early 2025, but they were not raised with any expert until his letter to the valuer on 31 August 2026, two weeks before trial ([9]–[11], [18], [20]).
• Filing deadlines mean what they say. Both affidavit deadlines came after the husband knew about the alleged defects, and neither affidavit mentioned them ([17]–[19]).
• An explanation for delay will be tested against your own conduct. Here, the husband's filing record and his complaint to the Building Commission undercut his explanation ([21]–[22]).
• A provisional quote is not valuation evidence. A quote that says an engineer must inspect before it can be finalised had "no probative value" ([25(a)]). Repair costs estimated by an owner were also not independent, in the valuer's view ([14]).
• Late evidence prejudices the other side. The wife could not test the quote or get her own evidence in time ([25(b)]).
• Expert evidence has its own rules. Annexing a quote to your own affidavit does not get around the Rules on expert evidence ([25(c)]).
• Refusal is not always the end of the issue. The husband could still put the alleged defects to the single expert in cross-examination ([25(d)]).
• Support workers and McKenzie friends: encourage people to raise known problems with property early, with their lawyer and with the single expert, and to keep to every filing date. Explaining delay on the first day of trial is much harder than avoiding it.

"If it matters to value, get it in front of the expert early, not into an affidavit filed on the morning of trial."

"Your explanation for delay will be measured against everything else you managed to do in the meantime."