AGASSI & AYARI

[2020] FamCA 538

FAMILY COURT OF AUSTRALIA

AGASSI & AYARI [2020] FamCA 538

FAMILY LAW – EVIDENCE – Whether the identity of a witness should be disclosed prior to another witness giving evidence – Identity of witness not provided at this stage in the proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Agassi

RESPONDENT: Mr Ayari

FILE NUMBER: SYC 5697 of 2016

DATE DELIVERED: 6 May 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 6 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Craddock Murray Neumann Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cairns

SOLICITOR FOR THE RESPONDENT: In person

Orders

NO FORMAL ORDER MADE

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 Agassi & Ayari 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)

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FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5697 of 2016

Ms Agassi

Applicant

And

Mr Ayari

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is a difficult case.  There have been proceedings and orders made in Country E in relation to some of the property of the parties.  One of the issues before me is whether I ought to make any property orders or limited property orders, given those proceedings in Country E.  The husband’s case is, in essence, that the wife had property in which she may still have some beneficial interest in an apartment in City C.  The wife asserts that she does not have any property in that apartment block in Country E.

2. Much of the evidence with regard to that property has been of fairly recent times.  There are, in fact, two home units or two apartments to which the parties had or may have had some interest, and it is in relation to one of them which is of significant concern.  At the commencement of this hearing, I raised issues about the wife’s sister giving evidence by telephone, given the nature of the issues which I have to determine.  I raised at that time my concern for that witness in giving evidence from Country E to Australia, and whether there could be some adverse impact on her, given her current residential arrangements in that country, and as such she is to give evidence by audio/video link over the internet.

3. The husband’s evidence is that if the person who provided the information from the apartment corporation is disclosed at this stage, it may impact on his ability to give evidence or the nature of the evidence that he or she may be able to give.  The position of the wife is that this is family law in Australia and the process is substantially show and tell, not hide and seek.  Those are the structures in which I have to make a decision. 

4. I intend not, at this stage, to require the husband to disclose the name of that person, although it will be open for that question to be put to the husband after the wife’s sister gives evidence, and it will be open for the wife’s sister afterward to come back and give some further evidence in relation to that, so that there is some degree of procedural fairness.  It may well be that the whole of the trial would need to go to another day in a few weeks to enable some proper research to be undertaken by the wife.  That may or may not be the case, but that would certainly be something to which I will be open.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 6 May 2020.

Associate: 

Date:  18 June 2020