BEAZLEY & ANDREOPOLIS

[2008] FamCA 1275

FAMILY COURT OF AUSTRALIA

BEAZLEY & ANDREOPOLIS [2008] FamCA 1275

FAMILY LAW – CHILDREN – Interim

APPLICANT: Ms Beazley

RESPONDENT: Mr Andreopolis

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: SYF 2624 of 2004

DATE DELIVERED: 5 September 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 5 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Grieve and Mr Schonell

COUNSEL FOR THE RESPONDENT: Mr Batey and Mr Tockar

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Harper

IT IS NOTED that publication of this judgment under the pseudonym Beazley & Andreopolis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2624 of 2004

MS BEAZLEY

Applicant

And

MR ANDREOPOLIS

Respondent

REASONS FOR JUDGMENT

1. We have reached a point in the trial where Mr H is being cross‑examined.  Mr H is a very significant witness in the case because he gives evidence about an incident which the wife alleges took place and involved, on her version of the facts, an assault upon her.  This matter is particularly important because it assumed very great significance in the evidence of Dr W, and that evidence has been put before the Court very early in this hearing.

2. In the course of the cross-examination of Mr H the husband's counsel put, amongst other things, the following to him:

   “You saw the husband become aggressive at the police station.  You saw him banging on the car door and driving his knees into the car door of the wife's car.  He was using a lot of force.  You saw the husband become involved in an incident with the wife at the door of the police station at the Court.  He was yelling all the time and you then saw the husband strike the wife in the neck with his fingers.  It was a forward movement with four fingers, the fingers of the hand jabbing into the neck of the wife.  Is that correct?  You noticed a red mark on her neck.”

   For the purposes of this determination, they are examples of some of the matters put to this witness.

3. At a point which appeared to be the conclusion of the cross-examination of Mr H, the husband's counsel sought to put to him that his version of the facts in relation to this important incident was untrue or incorrect.  At that point the question was objected to. The submission in support of the objection is that the proposition now put appears to be contrary to the instructions of the husband.  The instructions of the husband in relation to this incident must be clearly determined by the questions and the matters put by his counsel in the course of the earlier cross-examination.

4. These proceedings are adversarial proceedings.  The parties have the option to have their children's issues heard other than as an adversarial hearing.  For whatever reason, they have chosen not to embrace that process.  The proceedings involve both children's proceedings and property proceedings.  It seems to me that there is a distinction to be drawn between adversarial proceedings that relate to children's matters as opposed to adversarial proceedings relating to property matters.  There is authority from the High Court of Australia to the effect that adversarial proceedings in respect of children's matters should not be regarded as pure adversarial proceedings.  There are aspects of the operation of the hearing of a children's case which are quite foreign to the normal processes of an adversarial hearing.  The Family Law Act 1975 (Cth) requires ultimately a different exercise for me to undertake in relation to the hearing of a children's case as opposed to the hearing of a property case. In a children's case I should have before me all relevant information.

5. Up until the time of this cross‑examination I clearly understood that the husband's case was that he had not assaulted the wife on the particular occasion said to have been witnessed by Mr H.  If what appears to be matters put on instruction during the course of cross-examination of Mr H, to which I have earlier referred, if those matters were truly put on instruction, it does seem to be a radical departure from the case which I understood the husband was bringing.  Mr Tockar in his submissions has made it clear that he was not instructed to put questions in that form, that he did not intend by the manner in which he framed his questions to be conveying the impression that the husband had changed his case, but rather he was seeking to clarify or explore exactly what the evidence of Mr H is.

6. In the circumstances I propose to allow Mr Tockar to put the alternate view and to allow the cross-examination to proceed on that basis.  I hope though in the process that some lessons are learnt by this exchange, and I would commend to those at the Bar table, not in any gratuitous way or any offensive way, but a reading of the decision of Justice Heydon in the matter of Libke v The Queen(2007) 230 CLR 559 His Honour there sets out, in what can only be described as marvellous prose in a very clear way, the obligations of cross-examiners and the implications arising from different styles and different approaches to cross-examination.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  10 November 2010