Carmel-Fevia and Fevia

[2012] FamCA 292

FAMILY COURT OF AUSTRALIA

CARMEL-FEVIA & FEVIA [2012] FamCA 292

FAMILY LAW – EVIDENCE - Ruling – admissibility of evidence

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

CDJ v VAJ 67 HCA [1998]; (1998) 197 CLR 172
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

APPLICANT: Ms Carmel-Fevia

RESPONDENT: Mr Fevia

FILE NUMBER: MLC 4389 of 2008

DATE DELIVERED: 10 February 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 10 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfield QC with Ms Vohra

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC with Mr Thompson

SOLICITOR FOR THE RESPONDENT: Saxbys Lawyers

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carmel-Fevia & Fevia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4389 of 2008

Ms Carmel-Fevia

Applicant

And

Mr Fevia

Respondent

RULING

1. Application has been made by the wife for permission, nunc pro tunc, to file three affidavits.  The hearing, which was adjourned part heard in late 2011 is at a point where the applicant wife is being cross-examined.  Whilst there is controversy about all three affidavits, the focus is mainly on that of the psychologist Dr B.  The other affidavits are that of the wife and her brother.  The latter relating to issues of the wife’s entitlements about her late father’s will.  Subject to one or two qualifications, I propose to admit the affidavit of Dr B in evidence.

2. Those qualifications relate to, first, a statement about his opinion of the wife in the very last sentence of the report dated 28 November 2011, which is annexed to the affidavit and a second to which I will later refer.  As to the substantive issue before me, it is submitted on behalf of the wife that this evidence is directed to explaining why at times her behaviour occurred.  That may be relevant to the question of why her role as a homemaker and parent varied, but it is hard to see how it can affect the fact that that was, in fact, her contribution.

3. It is submitted on behalf of the husband that the evidence is irrelevant because the contribution was what it was.  It is not suggested by the evidence that the husband was the cause of this diminished degree in the wife’s contribution.  The evidence which I have read attributes the wife’s problem to a generalised anxiety disorder arising from her childhood and upbringing.  If my interpretation of the psychologist’s evidence is correct, that is, it is not to suggest a Kennon-type situation, the evidence must be limited to two things.

4. First, it explains what was happening and, secondly, it goes to either the wife’s credit or the weight which should be given to her evidence-in-chief about the significance of her contribution as a homemaker and parent. In respect of those matters, there is some relevance because s 55 of the Evidence Act describes evidence as relevant if it is accepted as possibly rationally affecting the assessment of the probability of the existence of a fact in issue. Here, the issue predominantly is about the wife’s role as a homemaker and parent.

5. I take into account that this is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”), subsection (2) of which provides that a Court must not make an order unless it is satisfied that it is just and equitable to do so.  Why then should the evidence be admitted?  A number of considerations have to be balanced.  First, in the management of the matter in the lead up to the commencement of the hearing, I directed all parties to file their evidence in affidavit form.  It is well understood that this is a Court where evidence-in-chief is dealt with by affidavit.

6. I made a specific order precluding further filing without leave. That was to prevent parties changing direction and causing delays, prejudice and adjournments. The legal basis for that approach is set out in rules 15.05, 15.06 and 15.14 of the Family Law Rules 2004. As with all rules of this Court, the overriding and main purpose of the rules is as set out in Chapter 1 and that is to ensure that a case is resolved in a just and timely manner. The use of the word “just” means that consistent with the requirement in s 79(2), the Court has to give a litigant every reasonable opportunity to present evidence that would enable a just determination, that is, justice to be obtained.

7. Applications to lead further evidence in appeals, which applications are specifically governed by legislative provisions, sometimes are granted where there have been various procedural steps that have amounted to a denial of procedural fairness.  (See, for example, CDJ v VAJ 67 HCA [1998]; (1998) 197 CLR 172 and specifically the judgment at paragraphs 55 and 57). Discretionary though the provision may be in relation to calling further evidence, the question still remains about whether fairness has prevailed.

8. In the warning that was given in CDJ v VAJ, it is important that I consider whether this evidence should be allowed to be called as a matter of procedural fairness.  I am assured in this case that there is significance in this evidence and I see no prejudice to the husband.  The inconsistency with my order for trial can, therefore, be overlooked.  The evidence should therefore be permitted to be filed.

9. The second issue as put by the husband is that this affidavit material was prepared inappropriately because the wife’s solicitor had contact with the wife whilst she was being cross-examined.  Senior Counsel for the husband described the approach as being a significant impropriety if there has been a discussion with the wife about how to counter the effect of the admissions made by her in cross-examination.

10. I certainly did warn the wife about discussing issues with her lawyers and that was directed to the question of her evidence, to avoid it being tainted. 

11. The submission of the husband is that there is a prima facie assumption that a discussion has taken place.  Equally, however, there must be a presumption that lawyers know their responsibilities to the Court and that the starting point, therefore, is that I must presume that there has been no irregularity.  No doubt that issue can be revisited in cross-examination.

12. I am, therefore, not prepared to rule the evidence inadmissible on the basis of irregularity. 

13. A third issue concerned the expertise of the witness himself.  It was succinctly submitted by Senior Counsel for the husband that the affidavit of Dr B did not establish expertise, such as would satisfy Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. I reject that as a basis for permitting or refusing the wife the right to call the evidence. On the face of the affidavit, Dr B is a qualified psychologist, who refers to his doctoral thesis as well. The question of his expertise is a matter for cross-examination.

14. A fourth issue is that even if Dr B is an expert, can his evidence be called without leave because of the single-expert-witness rule. Rule 15.41 of the Family Law Rules 2004 excludes such evidence of adversarial experts, but permits it from a professional who is treating a party if the evidence of opinion is limited to the reasons for carrying out the treatment or the consequence of that treatment. Dr B’s evidence is that he diagnosed generalised anxiety disorder and that he treated it by cognitive behavioural therapy.

15. On the face of the affidavit, I would not rule that that breaches Part 15.5 of the rules. 

16. However, the affidavit makes reference to the wife as a caring mother.  I earlier mentioned a second reason that I had some disquiet about concerning the admissibility of the evidence.  To the extent that those statements were intended as an opinion, I would rule them inadmissible on the basis that they are matters for my determination.  Senior Counsel for the wife conceded as such.

17. A fifth issue was that Dr B was selective in annexing his records.  It is noted that the notes are not complete.  They have been fully provided because counsel had them for cross-examination.  There may be a number of reasons why that occurred but that is a matter that can be more appropriately explored in cross-examination if Dr B is called as a witness.

18. A sixth issue concerned the fact that the evidence of Dr B was based on hearsay. Hearsay is well defined and understood from the Evidence Act. However, here, if the evidence is ultimately ruled as expert evidence, the expert is entitled to ascertain his opinion from whatever source he requires, providing he refers to and identifies the sources. Those sources can then be the subject of cross-examination, including as to the question of whether or not he has the requisite expertise or has exceeded it. I would not rule as inadmissible, therefore, the evidence on the basis of the hearsay issue until the earlier points are determined.

19. A seventh issue is that whether this evidence is fresh evidence or not.  The husband submits that it is not.  It is submitted the evidence is called to counter the effects of the cross-examination of the wife.  If it is put to bolster the wife’s credit, it cannot, therefore, be led by virtue of the provisions of the Evidence Act 1995 (Cth).

20. Senior Counsel for the wife submitted that the wife was not seeking to reopen her case, as there was no need to do so.  Her case is still open.  However, he pointed out that the wife was being cross-examined on selective parts and properly so, but he desired to re-examine her to clarify her answers in cross-examination and the restrictions on leading questions in re-examination would require the case probably to be adjourned on an application to call the expanded evidence.

21. The underlying premise was that the course taken by the wife was to avoid the necessary delay and further expense. Because of s 79(2) it is conceivable that such a course might become necessary.

22. In many, if not most Courts of civil litigation, litigants live and die by their pleadings and their case as it is run.  Here, whilst the Court has an obligation to use its resources wisely and it can hold litigants to the course they began, the overriding difficulty is how a Court makes an order when it has refused permission to call evidence that may or may not affect that determination.  For that reason, it seems appropriate to allow the evidence to at least be filed.  Its weight and use, is still a subject to be determined. 

23. I am, therefore, prepared to permit the filing nunc pro tunc.  In respect of the other affidavits to which I referred, I am told that issues can be compromised, but to the extent that there is an objection to paragraphs 6 and 7 of the affidavit of the husband, I certainly, at this point, agree with Mr Kirkham in respect of the first sentence of paragraph 6 and Mr Bartfeld in respect of the second sentence.  I otherwise agree with Mr Kirkham in respect of paragraph 7 of the husband’s affidavit.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 February 2012.

Associate: 

Date:  17 April 2012