Berrell and Berrell (No. 2)
[2013] FamCA 900
•13 November 2013
FAMILY COURT OF AUSTRALIA
| BERRELL & BERRELL (NO. 2) | [2013] FamCA 900 |
| FAMILY LAW – PROPERTY – Oral application – Where the Husband is seeking permission at trial to produce and rely on evidence of the content of documents not disclosed until two business days before trial – Where the Wife does not consent to the documents or their contents being presented at trial. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) | |
| APPLICANT: | Ms Berrell |
| RESPONDENT: | Mr Berrell |
| FILE NUMBER: | BRC | 10381 | of | 2010 |
| DATE DELIVERED: | 13 November 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 13 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hamwood and Ms Oakley |
| SOLICITOR FOR THE APPLICANT: | Files Stibbe Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hodges |
| SOLICITOR FOR THE RESPONDENT: | James Noble Family Law |
Orders
The Husband’s application, save in respect of the documents to which the Wife now does not object, for permission to tender documents and present evidence of their content is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Berrell & Berrell (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10381 of 2010
| Ms Berrell |
Applicant
And
| Mr Berrell |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
There is an application before me within the substantive property proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) for the Husband to have permission within the meaning of rule 13.14(a)(i) of the Family Law Rules 2004 to offer documents and present evidence of the content of documents not disclosed prior to Friday 8 November 2013. Rule 13.14(a)(i) allows a party to offer such documents, only if there is consent of the other party or with the Court’s permission. The Wife does not consent to the documents or their contents being presented in respect of MBO1 and MBO5 annexed to the Husband’s affidavit filed by leave this morning in support of his application for permission.
Chapter 13 of the Family Law Rules sets out the rules about the parties’ duty to make early, full and continuing disclosure of all information relevant to the case to each party and the Court. It regulates the timing, extent and method of discharging the duty of disclosure and how the duty is to be enforced.
The rule to which I have referred is one method of enforcement, that is, a party who fails to make disclosure in accordance with the rules runs the risk of not being permitted at a trial to offer not early disclosed documents or proof of their content. The documents the Husband seeks to now provide and offer evidence about relate to an alleged loan he says is owed to one Mr R, which has been in issue for a considerable time during these proceedings.
In his financial statement filed on 11 March 2011, and in his more recent financial statement relied upon in the substantive proceedings filed on 2 April 2013, under Part K listing liabilities, there is simply a listing of “[Mr R]” and an amount of money, $453,516 as at 21 January 2013. There is no issue taken on the Husband’s side that documents he says relate to that loan were not disclosed earlier than last Friday, for the first time.
In addition to the relevant rules, the Wife relies upon the order made by Federal Magistrate Slack on 3 May 2011 in relation to disclosure of the documents. It is plain that by the terms of that order, the Husband was obliged to disclose the schedule he has apparently, or says he has prepared in relation to loan transactions, which he now seeks to admit into evidence.
Whilst rule 13.14(a)(i) is silent as to what the Court must or should take into account in terms of exercising its discretion to grant permission, it seems to me that in the usual course, the Court would need to consider any reasonable explanation for the delay or the non-disclosure and importantly, any prejudice said to be suffered by the other party due to the late disclosure.
The Wife also relies on this application on the Husband having made an undertaking as to his disclosure, that is, that he had given a solemn undertaking to the effect that he had disclosed all relevant documents; and reference has also been made to an application mounted by the Wife that came before the Court on 9 September 2013, in which issues about disclosure were agitated, albeit they were not ultimately pursued.
It seems to me that in these circumstances, prejudice to the Wife is an important consideration. The relevant matters identified by Mr Hamwood, counsel on her behalf, include that there is no opportunity or no reasonable opportunity for there to be cross-referencing between the schedule prepared by the Husband and bank statements and financial statements of relevant entities to verify the assertions by the Husband in that schedule as to payments he says have been made or recorded in his schedule. The position in the trial is that the Husband is in the witness box being cross-examined and I think that the submissions Mr Hamwood makes that he is limited in his cross-examination of the Husband has merit.
There is no way, it seems to me, on the belatedly disclosed schedule that the Wife can fairly verify what the Husband alleges in circumstances where the relevant liability is substantial. Issues of disclosure were obviously important and it would seem that for some time, there has been an issue about the amounts and repayability of the subject loans.
In these circumstances, I decline the application for the Court to give permission to the Husband to now offer the relevant document or present evidence of its content. Save in respect of the documents to which the Wife now does not object, I refuse the application for permission in respect of the other documents, so far as their tender or for the Husband to give evidence as to their content.
The other matter I ought record is a specific finding that I am not satisfied on the material relied upon by the Husband on this application as to the Husband’s explanation for the delay in disclosing a schedule in respect of the disputed loan. That is, I specifically find that he has not offered a reasonable explanation for not having earlier disclosed it.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 13 November 2013.
Associate:
Date: 18 November 2013
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