Canavan & Dowd (No 2)
[2023] FedCFamC1F 909
•9 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Canavan & Dowd (No 2) [2023] FedCFamC1F 909
File number(s): MLC 9945 of 2020 Judgment of: JOHNS J Date of judgment: 9 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – where the respondent husband seeks leave to rely on an affidavit regarding assessment of liabilities of his business – where the affidavit was filed less than two days before the commencement of the final hearing – where the deponent is not the individual who undertook the calculations of the alleged liabilities – where the wife would not be afforded procedural fairness if the affidavit were admitted into evidence – leave refused Division: Division 1 First Instance Number of paragraphs: 17 Date of last submission/s: 9 October 2023 Date of hearing: 9 – 12 October 2023 Place: Melbourne Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Morrison and Sawers Counsel for the Respondent: Mr Tatarka Solicitor for the Respondent: SMR Legal Counsel for the Independent Children's Lawyer: Mr Tesoriero Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 9945 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CANAVAN
Applicant
AND: MR DOWD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
9 OCTOBER 2023
THE COURT ORDERS THAT:
1.That the husband’s oral application for leave to rely upon the affidavit of Ms L filed 7 October 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Canavan & Dowd has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
The matter of Canavan is listed for final hearing to commence before me today. Application is made on behalf of the respondent husband to rely upon an affidavit of Ms L, filed on the evening of Saturday, 7 October 2023, less than two days prior to the commencement of the hearing.
The applicant wife opposes leave being granted to the husband to rely on that affidavit.
The affidavit of Ms L relates to alleged liabilities of the husband said to have been incurred in the operation of his business, and his expenditure and holding of livestock.
The witness deposes that she is a Certified Practicing Accountant; she works as a Bookkeeper and is the Director of M Company which provides bookkeeping services in New South Wales. She deposes that her company has undertaken bookkeeping work for the husband and his company since late 2020. The witness provides estimates as to alleged liabilities arising under Workcover Insurance in New South Wales for the operation of the husband’s business.
That estimate as to liability is based on estimated wages as well as actual wages paid by the husband in relation to the operation of his business. It purports to provide estimates for the period 2017 to 2023 inclusive.
The witness also purports to calculate expenditure of the husband and the wife, albeit that the calculations in relation to such expenditure were prepared by another employee of the deponent’s business. Finally, the witness deposes as to the husband’s purchase and sale of livestock between 2018 and 2020. She deposes that she has reviewed spreadsheets and source documents provided by the husband in relation to those transactions.
The difficulty with the evidence as provided in that affidavit is twofold. Firstly, I have made trial directions in this matter on 23 February 2023 which provided for the orderly production of evidence in relation to this matter. This trial has been in my docket for some years. There have been difficulties with listing the matter to enable it to be finalised. The matter was originally listed for final hearing on 11 July 2023 pursuant to those orders and subsequently, at the request of the husband, was adjourned and listed for hearing to commence this day. The trial directions originally made by me required that the husband file his trial affidavit material by 1 May 2023.
Subsequent to the making of those trial directions, it was submitted that there was agreement between the parties for an extension of time for the filing of material. It is common ground that the filing and service of the affidavit of Ms L is well outside the boundaries of my trial directions and the agreed extension of time.
It was submitted, and I accept, that the late filing of that material has provided the wife with virtually no opportunity to provide any meaningful instructions to her Solicitor and Counsel in relation to the matters raised, or to obtain any advice from them in relation to the matters contained within that affidavit. I note that the affidavit of Ms L is 163 pages, including 160 pages of annexures.
I am satisfied that the wife has been afforded almost no opportunity to properly and appropriately consider the matters contained in that affidavit.
Second and in addition to those issues, it was submitted that the evidence sought to be adduced is not from an appropriately qualified expert; the affidavit is not from the Accountant or Bookkeeper who has undertaken work for the husband in relation to the operation of his business and the calculation of his liabilities. Rather, Ms L is the Director of the bookkeeping service engaged by the husband. She is not the person within that firm who has undertaken the calculation of the husband’s liabilities and expenditure. Having regard to that fact I am satisfied that the witness is not the person qualified to be giving evidence in relation to those matters.
The affidavit does not comply with the rules of Court in relation to the appointment of expert witnesses. Given the issues raised, the more appropriate way for the issue to be addressed would have been through the appointment, by the parties, of a single expert to assess the liabilities of the business and provide evidence in relation to the same; that has not occurred.
No submission has been made on behalf of the husband as to any attempt by him to adduce evidence from a single expert.
To grant leave to the husband would inevitably necessitate a delay to the commencement of the trial, or even an adjournment of it, in order to afford the wife the opportunity to appropriately respond to the material.
The pool of assets in this matter ranges somewhere between $0, on the husband’s case, to approximately $700,000 on the wife’s case. I am told this morning, and have regard to, the costs notices filed by each of the parties, which indicates that the parties have already expended some $357,000 on legal expenses.
If there were to be a further adjournment of this matter, there would be a significant increase in the costs incurred by both parties, not to mention the delay in the finalisation of the dispute. If the matter does not proceed and finalise this week, there will not be opportunity for it to be relisted until late in the first half of next year; that is a factor that weighs heavily in my mind in the determination of this application.
I have to ensure that there is fairness afforded to both sides; to permit the husband to rely upon the affidavit of Ms L would visit a substantial unfairness upon the wife. Having regard to the matters to which I have referred, I do not consider that it is appropriate that leave be granted for the husband to rely upon the affidavit of Ms L.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 24 October 2023
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