Cisek & Farrah

Case •

[2023] FedCFamC1F 102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cisek & Farrah [2023] FedCFamC1F 102

File number(s): PAC 1160 of 2021
Judgment of: HARTNETT J
Date of judgment: 24 February 2023
Catchwords: FAMILY LAW – EVIDENCE – Where the applicant and first respondent sought to tender further documents in evidence – Where the applicant opposed the first respondent tendering documents or parts of documents – Where the first respondent opposed the applicant tendering NSW Police subpoena documents – Where the applicant’s documents tendered in evidence – Where limited documents of the first respondent tendered in evidence.
Legislation: Evidence Act 1995 (Cth) ss 55, 69, 87
Cases cited:

Browne v Dunn (1893) 6 R 67

West v Mead (2003) 13 BPR 24,431

Division: Division 1 First Instance
Number of paragraphs: 49
Date of last submissions: 27 January 2023
Date of hearing: 20 January 2023
Place: Parramatta
Counsel for the Applicant: Mr Fowler
Solicitor for the Applicant: Hikma Legal
Counsel for the First Respondent: Mr Barham
Solicitor for the First Respondent: V L Macri Lawyers
Counsel for the Second Respondent: Mr Heazlewood
Solicitor for the Second Respondent: Coleman Greig Lawyers

ORDERS

PAC 1160 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CISEK

Applicant
AND:

MR FARRAH

First Respondent

NEW SOUTH WALES TRUSTEE AND GUARDIAN ON BEHALF OF MS ELSNER

Second Respondent

order made by:

HARTNETT J

DATE OF ORDER:

24 February 2023

THE COURT ORDERS THAT:

1.The following documents shall be admitted in evidence and marked as Exhibit MC-10:

(a)pages 24 to 25 and 46 to 48 (commencing E …50 to the end of Narrative 1) and 48 (commencing E …05) to 51 (to the end of Narrative 1) and 48 (commencing E …05) to 49 (to the end of Narrative 1) of the New South Wales Police Subpoena documents.

2.The following documents shall be admitted in evidence and marked as Exhibit MF-5:

(a)introductory parts of the applicant’s affidavit of 5 March 2021 and paragraph eight;

(b)introductory parts of the applicant’s affidavit of 5 May 2021 and paragraphs one and two;

(c)introductory parts of the applicant’s affidavit of 5 September 2022 in the Supreme Court of New South Wales and the last sentence of paragraph ten;

(d)pages 37 and 38 of the applicant’s tender bundle relating to event reference …46; and

(e)pages 43 and top of 44 of the applicant’s tender bundle relating to event reference …47.

3.Otherwise, no further documents be tendered in evidence.

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 Cisek & Farrah has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARTNETT J

INTRODUCTION

  1. Before proceeding to hearing closing submissions of the parties to the proceeding, the applicant de facto wife (“the applicant”) and the first respondent de facto husband (“the first respondent”) sought to tender limited further documents in evidence. The tender of these documents were for the most part opposed by each of them. Written submissions on behalf of the first respondent (copied to the other parties) were received by email to chambers on 23 January 2023. Written submissions on behalf of the applicant were filed on 27 January 2023. No written submissions were filed nor received from the second respondent (“the second respondent”) who did not agree to, nor oppose, the tender of further documents.

    RELEVANT BACKGROUND

  2. The applicant was born in Country B in 1980, and is 42 years of age. The applicant is unemployed and living in Department of Housing rental accommodation.

  3. The first respondent was born in Country C in 1966, and is 56 years of age. He is employed as a full time retail worker. He resides in a home of which he is the sole registered proprietor, and which is the subject of claim by the other parties in this proceeding.

  4. The applicant and first respondent commenced their relationship in 1998. The parties had a religious marriage ceremony in 1999 with the reception taking place in late 1999.

  5. The day before the reception, however, the applicant married the first respondent’s brother, Mr D (“Mr D”), in a civil ceremony. It is the applicant’s position that she was coerced by the first respondent who threatened to leave her and her unborn child.[1]

    [1] Applicant’s affidavit filed 3 December 2021, paragraphs 17-18.

  6. There are two children of the applicant and first respondent’s de facto relationship, declared by the Court to be a de facto relationship by declaration made on the 14 June 2022. Those children are Mr F born 2000 (“Mr F”) and Ms G born 2002 (“the children” collectively). Both children are the biological children of the first respondent and the applicant, however, Mr D was recorded as the father on the birth certificate of Mr F.

  7. The first respondent and second respondent were also in a de facto relationship. The commencement of that relationship is subject to Court findings but it is an agreed fact in the proceedings between the first and second respondents that their relationship satisfied the legislative definition of a de facto relationship as set out in s 90RD of the Family Law Act 1975 (Cth) (“the Act”).

    ALLEGATIONS SUBJECT TO FINDINGS

  8. In mid-2015, the first respondent allegedly sexually assaulted the applicant. The parties separated under the one roof of their Suburb E property.

  9. About a week later, the first respondent allegedly sexually and physically assaulted the applicant.

  10. A few days later, the first respondent allegedly assaulted the applicant placing a knife to her throat.

  11. Two days later, the applicant reported the second incident as alleged by her to Suburb H Police Station who directed her to Suburb K Police Station for a formal statement to be made. NSW Police took out an apprehended domestic violence order (“ADVO”) which expired in 2017.

  12. In mid-2015, the applicant and her father attended upon Dr J (“Dr J”) where the applicant signed a statutory declaration detailing alleged family violence perpetrated by the first respondent upon the applicant.

  13. The first respondent was subsequently charged with assault and other charges relating to the second alleged incident in mid-2015. The first respondent asserted he entered into a plea deal in respect of those charges and spent time in custody.[2] The first respondent otherwise did not admit that there were incidents of sexual or physical violence as alleged by the applicant to have been perpetrated against her by the first respondent, nor with what the applicant alleged occurred in mid-2015.[3] In cross-examination, the first respondent could not be certain as to whether or not he was charged with sexual assault.

    OBJECTIONS TO EVIDENCE

    [2] First respondent’s affidavit filed 10 November 2021, paragraph 68.

    [3] First Respondent’s affidavit filed 10 November 2021 paragraphs 65-66

    NSW Police Subpoena Documents

  14. The applicant sought to tender the below documents from the NSW Police subpoena documents as one exhibit as follows:

    (1)Pages 24-25 of applicant’s tender bundle;

    (2)Pages 46-48 (commencing E …50 to the end of Narrative 1) of applicant’s tender bundle;

    (3)Pages 48-51 (commencing E …05 to the end of Narrative 1); and

    (4)Pages 48 to 49 (commencing E …05 to the end of Narrative 1).

  15. The applicant submitted in relation to the tender of those documents, corresponding to the numbering above, as follows:

    (1)these documents link the CAN H numbers for which the first respondent was convicted, to the corresponding police event number describing the circumstances of the complaints for each event;

    (2)these documents relate to E …50 which is the event linked to H …35 (one of the charges for which the first respondent was convicted). The connection is shown on p.24 of the tender bundle. The complaint for which the first respondent was convicted is relevant. These facts were put to the first respondent in cross-examination. He largely denied them;

    (3)these documents are pages already admitted into evident in relation to:

    (a)event number E …05 (p.48 of the applicant’s tender bundle) which links to H …51 (p.24 of the applicant’s tender bundle);

    (b)the attendance by the applicant at Suburb K Police Station to make complaints; and

    (c)the complaint of assault of mid-2015 (Offence 2 on p.50).

    The remaining parts are sought to be tendered on the basis that:

    (i)these complaints were made by the applicant (evidence of complaint is relevant);

    (ii)section 64(3) of the Evidence Act 1995 (Cth) (“the Evidence Act”) exception to hearsay exclusion applies as the applicant gave evidence; and

    (iii)it was put to the applicant in cross-examination by counsel for the first respondent that “You didn’t tell the police about any abuse except for the two incidents set out on pages four and five of the Provisional ADVO did you?”. The applicant responded that she did so. The implication of the cross-examination is that the applicant fabricated or reconstructed. Section 108 of the Evidence Act provides that the credibility rule does not apply to evidence of the applicant’s prior consistent statements. The police event narrative at pages 49 to 51 of the applicant’s tender bundle support the applicant’s evidence.

    (4)Narrative 1 on page 49 are the circumstances of E …05 which is the first respondent’s conviction H …51 being the 1st entry on page 2 of Exhibit MC-7, which is the first respondent’s criminal record. The husband was cross-examined about this.

  16. Objection was taken by the first respondent to the tender of pages 24-25 and 46-51 of the applicant’s tender bundle. On its face, pages 24 to 25 sets out a list of “police events” pertaining to the first respondent, whereas pages 46-51 set out incident details and narratives which correlate to the stated “police events”. Counsel for the applicant submitted that each of these pages cannot be read in isolation, but rather must be read together. I accept that submission.

  17. Exhibit MC-7, which is the first respondent’s criminal record and currently in evidence, shows that the first respondent was convicted of offences in 2016. It does not set out the events or details of who was the victim of the offences. Exhibit MC-7 gives those two offences the number H …35 which is reflected in the bottom right hand corner on the table of page 24 and finishing on page 25 of the document sought to be tendered, which reads as follows:

E…50 BREACH AVO
OFFENCE AGAINST THE PERS OTHER
OFFENCE AGAINST THE PERS OTHER
CHILD/YOUNG PERSON AT RISK 		…/…/2015 20:30
…/…/2015 20:30
…/…/2015 20:30
…/…/2015 20:30 		CAN H …35
CAN H …35
CAN H …35

  1. Further, Exhibit MC-7 also demonstrates that the first respondent was convicted of H …51, for two offences, which appears in line four and five of the table on page 25. Those lines read as follows:

E…05 MISCELLANEOUS …/…/2015 17:30 CAN H …51
E…53 SEXUAL ASSAULT …/…/2015 18:00 CAN H …51

  1. Counsel for the applicant submitted that the relevance of the above document was that it links CAN H …35 to the event number used in the police records, being E …50. Thus linking “breach of avo, offence against other pers..[and] child/young person at risk” with the husbands conviction for the specific offences set out in Exhibit MC-7. That event number further appears on pages 46 to 48 of the applicant’s tender bundle, which sets out the narrative of the event that lead to the husband being charged and then convicted. Similarly, event number E …05 pertaining to “sexual assault” and “miscellaneous”, which appears on pages 48 to 51 of the applicant’s tender bundle, is linked to conviction CAN H …51 for the specific offences set out in Exhibit MC-7. Counsel for the applicant conceded that the balance of the table on pages 24 and 25 was irrelevant and accordingly those matters shall be struck from the tendered evidence.

  2. Counsel for the first respondent objected to the tender of the described pages on the basis that the documents are prejudicial to the first respondent and are not relevant in circumstances where the Court has a copy of the first’s respondent’s criminal record. Counsel for the first respondent further submitted that there was no probative value; the documents are not a business record within s 69 of the Evidence Act as they came into existence for the purpose of NSW Police complying with the subpoena; and the documents are not relevant under s 55 of the Evidence Act as they do not take the Court further than what is already evidenced in Exhibit MC-7.

  3. Counsel for the applicant submitted that the tendering of the NSW Police subpoena documents clear up the circumstances that occurred at the event which lead to the first respondent’s conviction which is in dispute. As referred to above, MC-7 does not set out the events that led to the conviction, nor the date when the first respondent was charged, nor who the victim was. In my view, these documents are relevant and probative, and admissible. Otherwise, I accept the submissions of the applicant’s counsel as to the tender in evidence of the documents as sought by the applicant.

  4. These documents shall be admitted into evidence. Marked Exhibit MC-10.

    First Respondent’s Proposed Tender of Documents

  5. The first respondent sought to tender the following documents:

    1.Introductory parts of the applicant’s affidavit of 5 March 2021, then paragraphs 1-2, 4 (not for truth), 5 (not for truth), 8.

    2.Introductory parts of applicant’s affidavit dated 5 May 2021 then paragraphs 1-5 up to “I am also concerned”.

    3.Introductory parts of the applicant’s affidavit of 5 September 2022 in the Supreme Court of New South Wales’ proceedings, then the first sentence of paragraph 2, and the last sentence of paragraph 10.

    4.Introductory parts of the applicant’s affidavit of 30 September 2002 in the SCNSW proceedings, then the second and third sentences: “An incident of sexual and physical violence took place [in mid-2015]. After this incident I left the matrimonial home and have been living separately with my daughter [Ms G] at a rental accommodation.”

    5.Those parts of the applicant’s tender bundle relating to:

    a.her attendance with police immediately prior to the commencement of these proceedings: pages 37-38 of the applicant’s tender bundle, relating to event reference […46];

    b.her attendance with police in [mid-2015], page 52 and 53 of the applicant’s tender bundle, event reference […64];

    c.police attending in response to the assault by [Mr L], pages 43 and top of 44 of the applicant’s tender bundle, event reference 61548847.

    Item 1: Applicant’s affidavit of 5 March 2021 - paragraphs one, two, four (not for truth), five (not for truth) and eight.

  6. Counsel for the first respondent submitted these parts of the affidavit filed 5 March 2021 are relevant because the applicant deposed to being “in good health”, which goes towards the issue of determining the state of the applicant’s health in these proceedings. The first respondent further submitted it is relevant as it goes to the date of the commencement of the relationship with the respondent and their marriage, and to the wife’s credibility. It was further submitted that under s 87 of the Evidence Act such evidence is admissible.

  7. The applicant objected to the 2nd sentence of paragraph two and paragraphs four to five being tendered in evidence on the basis that the applicant was not cross-examined on these matters as set out in that material. The Applicant did not object to paragraph eight, and such evidence shall be admitted.

  8. I agree with the submissions made by counsel for the applicant and find that procedural fairness has not been afforded to the applicant and nor are the implications sought to be drawn by the first respondent from the objected to evidence apparent from the evidence filed by the first respondent. The applicant’s affidavit of 5 March 2021 will not be admitted in evidence, save as to paragraph eight.

    Item 2: Introductory parts of applicant’s affidavit dated 5 May 2021 then paragraphs one-five up to “I am also concerned”.

  9. The first respondent argues paragraphs one to five of the applicant’s affidavit filed 5 May 2021 is admissible as to cross-examination credibility.

  10. Counsel for the applicant objected to the tender of paragraphs three to five of that affidavit. Paragraphs one and two shall be tendered in evidence. Counsel submitted that the applicant was not cross-examined on this affidavit and in accordance with Browne v Dunn (1893) 6 R 67 it would not be procedurally fair as the applicant has not been afforded an opportunity to respond. Further, in accordance with West v Mead (2003) 13 BPR 24,431 counsel for the applicant submitted it was not apparent what implications are sought to be drawn regarding this evidence in the first respondent’s filed evidence.

  11. It is not apparent on the affidavit material sought to be tendered how it goes to the creditability of the witness in circumstances where a s 128 certificate of the Evidence Act was granted, and where the information contained in the material appears in other documents in evidence before the Court. Further, it is not apparent as to what is sought to be inferred from the proposed tender material.

  12. I agree with the submissions made by counsel for the applicant that procedural fairness has not been afforded. The applicant’s affidavit of 5 May 2021 will not be admitted in evidence, save as to paragraphs one and two.

    Item 3: Introductory parts of the applicant’s affidavit of 5 September 2022 in the Supreme Court of New South Wales’ proceedings, then the first sentence of paragraph two, and the last sentence of paragraph ten.

  13. Counsel for the first respondent submitted that paragraph ten of the applicant’s affidavit of 5 September 2022 in the Supreme Court proceedings is relevant because the concession the applicant makes in that affidavit that the parties had minimal assets at the commencement of relationship are relevant to facts in issue in the proceeding, “which are the extent of and valuation of assets of the parties at the commencement and end of the relationship”.[4]

    [4] First Respondent’s written submissions sent to chambers 23 January 2023.

  14. Counsel for the applicant submitted that the applicant was not cross-examined on this affidavit and in accordance with Browne v Dunn (1893) 6 R 67 it would not be procedurally fair as the applicant has not been afforded an opportunity to respond. Further, counsel for the applicant submitted in following West v Mead (2003) 13 BPR 24,431 it was not apparent what implications are sought to be drawn regarding this evidence in the first respondent’s filed evidence.

  15. Paragraph one and the first sentence of paragraph two of the affidavit of 5 September 2022 filed in the Supreme Court proceedings contains factual assertions already properly before the Court. The last sentence of paragraph ten sets out what the applicant states comprises the matrimonial asset pool and its value.

  1. In my view, this is relevant to a fact in issue in the proceedings, and a matter canvassed, and is admissible.

    Item 4: Introductory parts of the applicant’s affidavit of 30 September 2022 in the SCNSW proceedings, then the second and third sentences: “An incident of sexual and physical violence took place in [mid-2015]. After this incident I left the matrimonial home and have been living separately with my daughter [Ms G] at a rental accommodation.”

  2. The first respondent submitted items 4 and 5(b) are related in relation to the applicant’s allegations of the first respondent sexually assaulting her on a number of occasions. The relevance is that in Annexure ‘J2’ of the applicant’s affidavit of 3 December 2021, she made a statutory declaration containing the allegations of sexual assault. The applicant did not do so to the police in item 4 and 5(b). The first respondent submits that such statement is admissible under s 87 of the Evidence Act and “is relevant to a fact in issue, particularly given that the applicant makes a Kennon claim and it militates against accepting her as a witness of truth.”

  3. Counsel for the applicant submitted that the applicant was not cross-examined on this affidavit and in accordance with Browne v Dunn (1893) 6 R 67 it would not be procedurally fair as the applicant has not been afforded an opportunity to respond. Further, in accordance with West v Mead (2003) 13 BPR 24,431 counsel for the applicant submitted it was not apparent what implications are sought to be drawn regarding this evidence in the first respondent’s filed evidence. I agree with those submissions. I note that the applicant was cross-examined on the material before the Court in respect of the applicant’s allegations of sexual and physical assault upon her as perpetrated by the first respondent, and her reporting of same to police on the occasions she did so, which evidence is before the Court.

  4. The introductory parts and the second and third sentence of paragraph 13 of the affidavit of the applicant of 30 September 2022 in the New South Wales Supreme Court will not be admitted in evidence.

    Item 5: Tender bundle documents

    Item 5(a): her attendance with police immediately prior to the commencement of these proceedings: pages 37-38 of the applicant’s tender bundle, relating to event reference …46;

  5. The first respondent submits that pages 37 and 38, being police records of a domestic violence incident in early 2021 reported on the same day, are relevant. Those documents are statements made to the police by the applicant about an event that, during cross-examination, the applicant claimed to have no memory of.

  6. The applicant submitted that such records, which pertain to the applicant attending the police station to seek an ADVO in the context of an expired ADVO (with no contact between the first respondent and application for eight months being noted in that document together with nil reported issues since 2015) were not relevant to a fact in issue in these proceedings.

  7. I find pages 37 to 38 of the applicant’s tender bundle are relevant and admissible, and for the sake of completeness, I shall admit those pages in evidence. Marked ‘Exhibit MF-5’.

    Item 5(b): her attendance with police in mid-2015, page 52 and 53 of the applicant’s tender bundle, event reference …64;

  8. The first respondent submitted items 4 and 5(b) are related in relation to the applicant’s allegations of the first respondent sexually assaulting her on a number of occasions. The relevance is as earlier referred to in the context of Annexure ‘J2’ of the applicant’s affidavit 3 December 2021. The first respondent submitted that such statement is admissible under s 87 of the Evidence Act and “is relevant to a fact in issue, particularly given that the applicant makes a Kennon claim and it militates against accepting her as a witness of truth.”

  9. The applicant objected to the tender of the documents on the basis of relevance for the following reasons as set out in the applicant’s submissions:[5]

    a.p.53 of the Applicant’s tender bundle makes no reference to any attendance on police in [mid-2015], as asserted by the First Respondent’s counsel.

    b.At p.52, E […46] is a reference to a traffic infringement for a person not identified.

    c.The only [mid-2015] attendance at police recorded on either p.52 or 53 of the tender bundle is under E […71].

    d.At [10] of his submissions, counsel for the [First] Respondent submits that the police event records on pp. 52-53 … that police attended on the Applicant and the Applicant made no compliant of the shocking sexual violence which allegedly occurred. This is incorrect. Event […71] records that it was a person identified by police as PR (abbreviation for “Person Reporting”) who made a complaint to police about being stalked by PN1 ([Mr Farrah]). The only contact by police with the Applicant which is recorded in E […71] is a telephone call made by police to her on an unspecified date in which she told police that she still currently resides with (the First Respondent) as she has no other living arrangements but she is separated from him. This is consistent with the evidence given by the Applicant.

    e.The document sought to be tendered is incapable of rationally affecting the assessment by the Court of the probability of the existence of a fact in issue in the proceedings.

    f.Counsel for the First Respondent submits that a lack of complaint by the Applicant to the police when she was telephoned by police (on an unspecified date) about an unrelated complaint (the stalking complaint by PR) of the sexual violence she says was perpetrated upon her by the First Respondent, is an admission under s87 EA (that the sexual violence asserted by the Applicant did not occur). That submission cannot be upheld. There is no evidence of any relevant admission by the Applicant. To submit that a victim of significant family violence who fails to report family violence to police, even if given the opportunity to do so (which in relation to this event is not clear), while the victim is still living in the same residence as the perpetrator of that family violence, amounts to an admission that such family violence has not occurred, is inconsistent with reality.

    [5] Applicant’s written submissions filed 27 January 2023 page 2-3, paragraph 4.

  10. I agree with those submissions.

  11. Counsel for the applicant further submitted that counsel for the first respondent’s submissions as to what is to be made about the evidence that the applicant did not make complaints to police about what is set out in her statutory declaration (annexure ‘J2’ of applicant’s trial affidavit) is incorrect, as the applicant did make those complaints to police in mid-2015. Those complaints are noted in E ...53 on pages 49 to 51 of the applicant’s tender bundle which the first respondent objected to (as discussed above) but which the Court finds to be admissible and of probative value, and more so given the first respondent’s further submissions as set out herein.

  12. Pages 52 and 53 will not be admitted in evidence.

    Item 5(c) police attending in response to the assault by Mr L, pages 43 and top of 44 of the applicant’s tender bundle, event reference …47.

  13. In relation to item 5(c) the first respondent submitted the statement made “is a prior consistent statement in rebuttal of any argument that [the first respondent] was not in a de facto relationship with [Ms Elsner] as long as he alleges, or that he was exclusively in a relationship with the applicant by virtue of the declaration made in [mid-2015].” The first respondent submits that such document is admissible and is a matter of weight for the Court.

  14. Counsel for the applicant did not address the Court in any particular detail in regards to the tender of this document save that if the documents sought to be tendered by the applicant are deemed inadmissible then this document would also need to be deemed inadmissible. Counsel for the second respondent did not object to the tender of the documents.

  15. The document in question refers to an incident in mid-2016, where the first respondent is the victim. The accused and the witness are not named but can be inferred to be the second respondent’s ex-husband and the second respondent respectively. Its relevance is that it states that the first respondent was in a relationship with the witness, the second respondent, for approximately seven years. The length of relationship is a matter in dispute in the proceedings.

  16. Page 43 and the page 44 of the applicant’s tender bundle are relevant. The question is one of weight. They shall be admitted in evidence. Marked Exhibit MF-5.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

Associate:

Dated:       24 February 2023


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