Boege & Boege

[2001] FamCA 1167

[2001] FamCA 1167

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA  Appeal No. EA 20 of 2001

AT SYDNEY  File No. CA 1385 of 1998

BETWEEN:

BOEGE

Appellant Husband

- and -

BOEGE

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT
AS EDITED FOR PUBLICATION

BEFORE:  Ellis, Finn & Warnick JJ

HEARD:  5 June 2001

JUDGMENT:  15 August 2001

APPEARANCES:

Mr Millar of Counsel (instructed by Chris Crowley and Associates, Solicitors, DX 5615 CANBERRA) appeared on behalf of the Appellant Husband.

Mr Hodgson of Counsel (instructed by John Nicholl & Co, Barristers & Solicitors, DX 5710 CANBERRA) appeared on behalf of the Respondent Wife.

APPEAL SUMMARY

MATTER:  Boege and Boege
NUMBER:  EA 20 of 2001
CORAM:   Ellis, Finn and Warnick JJ
DATE OF HEARING:  5 June 2001
DATE OF JUDGMENT:                  15 August 2001

CATCHWORDS:  APPLICATION TO ADDUCE FURTHER EVIDENCE – Allesch v Maunz (2000) FLC 93-033; (2000) 26 FamLR 237

At the conclusion of the hearing of the appeal, each party was asked whether they wished to adduce any further evidence to enable the Court to re-exercise the discretion by reference to circumstances as they existed at the time of the trial, should the Full Court allow the appeal.  Counsel for the wife indicated that the wife desired to adduce further valuation evidence given the passage of time since the trial (April 2000).  However, it was subsequently established that the wife wanted to make inquiries about whether there were any matters of valuation about which evidence could then be obtained, admission of which would then be sought.

The Full Court then discussed the case of Allesch v Maunz (2000) FLC 93-033; (2000) 26 FamLR 237 and found that while it has been a widespread and well-known practice that a party wishing to adduce further evidence before the Court is not required to have all of that evidence immediately available in admissible form, that party must be able to point to the nature of such evidence. It is inconsistent with the orderly and expeditious conduct of proceedings that a party be given an opportunity to investigate whether or not there may be some further evidence which might be placed before the Full Court and as such would only be granted in exceptional circumstances. Those circumstances do not exist in this case.

Reportable

[This is an edited version of the Full Court judgment in a case in which the Full Court, having decided that an appeal by the husband against orders for property settlement should be allowed, went on to discuss the issue of the further evidence that might be adduced by the parties for purposes of a re-exercise of the discretion by the Full Court if the Full Court decided that it would re-exercise the discretion.]

…

FURTHER EVIDENCE IN THE EVENT OF A RE-EXERCISE OF DISCRETION

1. Counsel for each of the parties was asked if either desired to adduce further evidence to enable the Court to re-exercise the discretion by reference to circumstances as they exist at the time of the appeal, in the event this Court allowed the appeal and was to consider a re-exercise of the discretion.

1. Counsel for the wife initially indicated that, in view of the passage of time since the trial (mid-April 2000), the wife desired to adduce further valuation evidence.  However, it transpired in ensuing discussion that what counsel sought was the opportunity to make inquiries to ascertain if there were any matters of valuation about which evidence could then be obtained, admission of which might then be sought.

1. In Allesch v Maunz (2000) 26 Fam LR at 237, the High Court of Australia discussed the ramifications of an appeal by way of re-hearing, which is the nature of the appeal to this Court. In their judgment, Gaudron, McHugh, Gummow and Hayne JJ. said

   
   

   at 245:-

   “[31]If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances.  It is not entirely clear that that happened in the present case, particularly as the Full Court indicated that it could only speculate as to the likely outcome of a fresh application of the principles governing property settlement to the property then owned by the parties.”

1. The other member of the Court, Kirby J, also referred briefly to the necessity to give the parties “an effective opportunity to adduce further evidence”.

1. That judgment was handed down on 3 August 2000.  Since then, it has been a practice of this Court to enquire of the parties to an appeal whether, in the event that the appeal was allowed and the Court was to proceed to re-exercise a discretion, either party desired to place further evidence before the Court.  In our view, a widespread and well known practice has developed that, while a party wishing to adduce further evidence before the Court is not required to have all of that evidence immediately available in admissible form, that party must be able to point to the nature of such evidence.

1. It is quite inconsistent with the orderly and expeditious conduct of proceedings that in response to such a request as aforesaid, a party indicates merely that he/she would like the opportunity to investigate whether there might or may or may not be some further evidence which might be placed before the Full Court for the purposes of determining the appeal.

1. We do not interpret the references in the judgments of the High Court to the need to grant an opportunity to parties to adduce evidence as requiring, other than in exceptional circumstances, the deferment of the determination of an appeal to enable a party to embark on such an investigation as was suggested on the part of the wife in this case.  We do not consider that such circumstances exist in the present appeal.

RE-EXERCISE OF DISCRETION

1. Having concluded that the orders of the trial Judge fall outside the range of a reasonable exercise of discretion, it is necessary for us to consider whether it is appropriate for us to re-exercise the discretion.  We have indicated that we do not propose adjourning the hearing in the circumstances of this case to enable the wife to investigate whether there may be further evidence which she may wish to adduce.  In the event that the appeal was allowed, the husband invited us to re-exercise the discretion.  The wife, however, submitted that if the hearing of the appeal was not adjourned for the purpose indicated in paragraph 79 hereof, this Court should not re-exercise the discretion but remit the matter to a single Judge for re-hearing.  Notwithstanding that submission, in the light of the findings of the trial Judge, none of which were challenged on the hearing of the appeal and the material in the appeal books, we are of the view that, rather than remit the application for re-hearing, we should re-exercise the discretion.

I certify that the preceding 8  paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court as edited for publication

Associate