CHRISTENSEN & POWELL

[2020] FamCA 345

FAMILY COURT OF AUSTRALIA

CHRISTENSEN & POWELL [2020] FamCA 345

FAMILY LAW – PROPERTY – reopening of case – case reopened as to specific matters – application to adduce evidence as to particular matters

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Reid v Brett [2005] VSC 18

APPLICANT: Mr Christensen

RESPONDENT: Ms Powell

FILE NUMBER: CAC 1032 of 2018

DATE DELIVERED: 11 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 8 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

Orders

1. The Respondent Husband’s application to reopen proceedings to adduce evidence as to the value of the parties’ recreational vehicle and the property previously owned by him at Suburb L is refused.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Christensen & Powell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC1032 of 2018

Mr Christensen

Applicant

And

Ms Powell

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Husband’s applications occur in the context that the final hearing between the parties was conducted in October 2019, with judgment reserved.  The matter was then relisted, at the instigation of the court, to deal with a deficit in the evidence regarding the parties’ superannuation interests that prevented the finalisation of judgment.  Orders were then made to prepare material to address the deficit in the evidence, a process that remains underway.

2. The Husband subsequently sought the reopening of the case to allow him to adduce evidence with regard to his changed financial circumstances, and to deal with matters for which he says there was inadequate evidence led at the trial.

3. The Husband was permitted to reopen (by consent) to file evidence relating to the value of the K Business, his personal financial circumstances and income.

4. The Husband also sought that he be able to reopen the case regarding the value of the recreational vehicle and investment property he held at the commencement of the relationship located at Suburb L in Queensland.  Leave was opposed in relation to these aspects.

Material relied upon

1. The Husband relied upon the following:

   a)His Application in a Case filed 15 April 2020; and

   b)His Affidavit filed 15 April 2020.

Principles

1. The Husband identified that principles to be applied from Reid v Brett[1], in particular paragraph 41 which provides that:

   The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:

   a)the further evidence is so material that the interests of justice require its admission;

   b)the further evidence, if accepted, would most probably affect the result of the case;

   c)the further evidence could not by reasonable diligence have been discovered earlier; and

   d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.

   In Smith v New South Wales Bar Association, the High Court of Australia stated that in such a situation it was difficult to see why “the primary consideration should not be that of embarrassment or prejudice to the other side.”

   [1]Reid v Brett [2005] VSC 18

The Recreational Vehicle

1. There was no evidence at trial of the value of the recreational vehicle other than the values nominated by the parties, which potentially constitute admissions made by each. In support of his application, Mr Christensen pointed to the divergence in the values nominated by the parties in respect of this asset, the Wife nominating a value of $25,000, the Husband $40,000.

2. What is sought by the Husband is that an unknown valuer be appointed, at unknown expense, to be paid for by both parties.  He has not identified the actual evidence that would be led as to value, merely the class of evidence.

3. No adequate explanation was given for the failure to adduce the evidence at trial other than the Husband being self-represented.  Such evidence could have been obtained with reasonable diligence. 

4. There can be no assessment that the evidence of a valuer would most probably affect the outcome or that the interests of justice require its admission.  The call for the production of evidence is speculative as to its content being significant to the outcome of the case.

5. Although the parties are now subject to the circumstance that the trial is being reopened for both the superannuation issues and the current financial circumstances of the Husband and the value of the business, the added scope posed by further evidence in respect of the recreational vehicle is prejudicial as it adds to the duration of any further aspect of the trial in adding to the scope of the trial.

6. The application is to be refused.

The Suburb L property

1. Only limited evidence was available at trial in relation to the value of the Suburb L property held by the Husband at the start of the relationship.

2. The Husband notes that his attempt to adduce a value was struck out as inadmissible. He explains the lack of evidence as a consequence of his being self-represented. The lack of legal representation does not place a person in privileged position.[2]

   [2]Gallo v Dawson (1990) 93 ALR 479.

3. Although the Husband asserted that there was a vacuum in the evidence, this was not so.  There was evidence before the court as to the use of the proceeds of the sale of the Suburb L property. 

4. Again, the evidence could have been obtained with reasonable diligence.

5. The Husband does not identify the evidence that would be led and so it cannot be said that it is either so material to the case that the interests of justice require its admission, nor that it would most probably affect the result of the case.

6. The admission of the further evidence again would expand the scope of the reopened hearing to the prejudice of the Wife.

7. The application is to be refused.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 11 May 2020.

Associate:

Date: 11 May 2020