Chalk and Camden (No.3)
[2008] FMCAfam 1431
•23 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHALK & CAMDEN (No.3) | [2008] FMCAfam 1431 |
| FAMILY LAW – Application to re-open contravention proceedings – Application refused – functus officio. |
| Evidence Act 1995 (Cth) s.43 Family Law Act 1975 Federal Magistrate Court Rules 2001, paragraph 16.05(20(b), rule 16.07 |
| Cosgrove v Johns [1998] QCA 110 |
| Applicant: | MR CHALK |
| Respondent: | MS CAMDEN |
| File Number: | BRC 3435 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 23 May 2008 |
| Date of Last Submission: | 23 May 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 23 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant appears on his own behalf |
| Solicitors for the Applicant: |
| Counsel for the Respondent: | Mr Cooper |
| Solicitors for the Respondent: |
IT IS NOTED that publication of this judgment under the pseudonym Chalk & Camden (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3435 of 2008
| MR CHALK |
Applicant
And
| MS CAMDEN |
Respondent
REASONS FOR JUDGMENT
This is an application to "re-open" some proceedings that were, in part at least, determined by me earlier this week.
The application is made on two bases. The first is that s.43 of the Evidence Act permits the course that the applicant wishes to adopt; secondly it is said that the application is supportable pursuant to r.16.05(2)(b) of the Federal Magistrates Court Rules 2001.
I will deal with the first aspect. Section 43 of the Evidence Act relates to the proof of prior inconsistent statements by witnesses. It is in terms concerned with the cross-examination of witnesses and whether those witnesses have made statements which are inconsistent with testimony. Section 43 contains some rules about how a prior inconsistent statement is to be dealt with in cross-examination.
There is a suggestion in Cross on Evidence at about para.17.660 or thereabouts that s.43 can be used in appropriate cases to justify the calling of evidence in rebuttal or the re-opening of a case that has already been closed by a party so as to lead evidence to contradict evidence led by the other party, particularly in cases where the evidentiary onus is on a respondent who goes second in the proceedings and the application is made by an applicant.
But that is not the position here. The position here is that I have determined the contravention application inasmuch as it requires a determination of whether the mother has contravened the orders and whether that contravention is without reasonable excuse.
What remains to be determined in the case is the sanction that ought to be imposed, if any, what other orders should be made and what other powers available to the Court under Division 13A of the Family Law Act should be exercised. The attempt to adduce further evidence in the re-opening sense is directed to the findings of whether there has been a contravention or whether it has been without reasonable excuse.
I was taken to no authority and I could find none myself which suggested that after judgment has been given the Court still retains a power to re-open or permit a party to re-open and lead fresh evidence. That there are not any authorities on that point and it seems to me that is not surprising because once the Court has discharged its function it is functus officio in respect of those particular issues.
The relief that might be available to set aside the orders needs to be found in either the Family Law Act or the rules of this Court or perhaps the Family Court in a way in which I will explain shortly. It seems to me that the application on the first basis must fail.
I turn then to r.16.05(2)(b). That is an example of a rule of this Court which provides for an otherwise regularly entered judgment to be interfered with after the judgment has been passed and indeed perhaps after it has been entered.
Similar provisions exist in the rules of many other Courts and apart from those rules the only other way to interfere with a judgment is on appeal. The Full Court in this case, of course, retains a discretion under the Family Law Rules 2004 to admit what might be described as fresh evidence.
Rule 16.05(2)(b) provides that the Court may set aside its judgment or order after it has been entered if the order is obtained by fraud. I was not taken to any authorities wherein that rule has been considered and on reading the rule it is immediately apparent that the rule only has application where the judgment or order has been entered. Entry of orders is a reference to the recording formally of the judgment of the Court in a written order. Rule 16.07 deals with when an order must be entered.
Leaving aside that question and whether in fact the jurisdiction is engaged at all and assuming that it is engaged, it is my view that it is not sufficient to simply assert that a judgment was obtained by fraud to engage the rule. There must be proof of the fraud. No material was read on this application other than the submissions that were made. It is said that there is a document signed by the applicant in this case, which demonstrates that evidence that he gave earlier in these proceedings was false. That might or might not be so, but I am not satisfied that the rule is engaged because it is obtained by fraud.
There is a significant discussion of what is necessary to be proved to set aside a judgment obtained by fraud, either pursuant to a rule or pursuant to the powers that at least a superior Court of record inherently has in a decision of the Court of Appeal, Supreme Court of Queensland, called Cosgrove v Johns [1998] QCA 110, particularly the judgment of Ambrose J. I am entirely unpersuaded that the rule is engaged and the application will be refused.
RECORDED : NOT TRANSCRIBED
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:
Date:
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