Chalk and Camden (No.3) - [2008] FMCAfam 1431

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chalk and Camden (No.3)

Details

AGLC: Chalk and Camden (No.3) [2008] FMCAfam 1431
Case: [2008] FMCAfam 1431
Decision Date: 23 May 2008

CaseChat Overview and Summary

The Federal Magistrates Court of Australia heard an application by Mr Chalk against Ms Camden, concerning the reopening of contravention proceedings. Mr Chalk sought to re-open proceedings on the grounds that section 43 of the Evidence Act 1995 permits the course of action he wishes to adopt and that the application is supportable under rule 16.05(2)(b) of the Federal Magistrates Court Rules 2001. The court was required to determine whether the application could proceed based on the cited legal provisions.

The court found that section 43 of the Evidence Act, which pertains to the proof of prior inconsistent statements by witnesses, was not applicable to re-opening the case in the manner proposed. The court held that once it had determined the contravention application, it was functus officio in respect of those particular issues. There were no authorities suggesting that a court retains the power to re-open a case and permit a party to lead fresh evidence after judgment has been given. The court also considered rule 16.05(2)(b) of the Federal Magistrates Court Rules 2001, which allows for the setting aside of a judgment or order if it was obtained by fraud, but found that the applicant had not provided sufficient evidence of fraud to engage the rule. The court concluded that the application must fail.

The court dismissed the application, finding that the provisions cited by Mr Chalk did not support the re-opening of the proceedings. The application was refused on both grounds presented.

Orders