By Tom Arden
The High Court has allowed a wife to introduce fresh professional evidence in an appeal concerning her husband's alleged failure to comply with a 2022 family law consent order.
The parties are identified only as S and E. In January 2025, the wife brought a motion in the Circuit Court seeking judgment arising from what she said was her husband's non-compliance with the consent order made in May 2022.
The Circuit Court heard the application on affidavit evidence on March 27th, 2025. It re-entered the family law proceedings but refused the substantive relief sought by the wife. She appealed that refusal to the High Court.
Ahead of the appeal, she sought permission to call evidence which had not been before the Circuit Court. The proposed witnesses were junior counsel involved in concluding the original settlement and a forensic accountant who had acted for her.
Mr Justice Jordan examined section 37 of the Courts of Justice Act 1936. Where a Circuit Court civil matter was decided without oral evidence, an appeal to the High Court is heard as a rehearing. However, evidence not given in the Circuit Court may only be introduced with the High Court judge's special leave.
The husband opposed the application and argued that if new oral evidence were permitted, the motion should instead be sent back to the Circuit Court for a fresh hearing.
The judge rejected that approach. He held that section 37 expressly gives the High Court discretion to admit fresh evidence during the appeal and that remitting the case was neither necessary nor procedurally preferable.
The court granted the wife permission to file affidavits from the two professionals. The husband was given equivalent permission to introduce additional evidence from witnesses of his choice. Deponents whose affidavits were used in the underlying proceedings were also directed to attend for cross-examination, subject to stated exceptions.
The ruling does not decide whether the husband breached the 2022 order or whether the wife's appeal will succeed. Those questions remain for the substantive appeal hearing.