Crowe, S.J. and Crowe, C.J.

[1988] FamCA 16

In the marriage of CROWE, S.J. and CROWE, C.J.

(1988) FLC ¶91-983

Other publishers' citations: (1988) 12 FamLR 696

Full Court of the Family Court of Australia at Hobart.

Judgment delivered 10 November 1988.

Before: Nicholson C.J., Frederico and Baker JJ.

Nicholson C.J., Frederico and Baker JJ.: This is an appeal brought by the former husband against the judgment and orders by way of settlement of property and costs at Hobart on 22 April 1988. There is also an appeal against a costs order of 27 April 1988.

The husband and wife had separated in October 1985. At that time, they consulted Mr L, an Australian Legal Aid Office solicitor at Launceston, regarding matrimonial property. Their significant assets consisted of a home, a cash sum of $34,000 hidden in the ceiling thereof, and the sum of $70,000 invested shortly after separation in a credit union under false names.

Early in 1986 the husband assaulted the wife, an offence with which he was charged and subsequently convicted. As a result, on 7 January 1986, the wife obtained a domestic restraint order from a magistrate. The wife alleged that late in February 1986 the husband threatened to shoot her, and as a result of her fears she again visited Mr L, and instructed him to have the restraint order set aside.

The husband subsequently visited the wife. They gave conflicting accounts as to whether violence took place on this occasion. In the course of his visit the husband made an offer to settle property matters. As a result the parties went to Launceston on 21 April 1986 and consulted Mr G, a solicitor. After discussions with Mr G the wife agreed to accept $20,000 from the husband and to vacate the home in his favour.

It was not until seven months later that the wife commenced proceedings to obtain settlement of property, which came on for hearing on 8 December 1987. The hearing occupied that day, was adjourned part-heard and concluded on 29 March 1988.

A substantial issue between the parties on the hearing was the disposition of the sum of $70,000 invested under false names. It was the husband's case that the sum had been divided equally and that this was a factor in the wife agreeing to accept only $20,000. The wife denied having received any part of the $70,000, and said that she accepted only $20,000 under duress arising from her fear of the husband.

Of course, the agreement between the husband and wife entered into on 21 April 1986 did not in any way affect the jurisdiction of the Court to make an order for settlement of property. But the question of the $35,000 in dispute, being one half of the $70,000 invested in joint names, was a significant factor to be brought into account in the formulation of the appropriate order.

In the event, the trial Judge found that the husband had received this money and had given back to the wife the sum of $20,000. His Honour clearly brought this finding into account in the property order which he made.

The hearing was complex and difficult and, as his Honour remarked during its course, was conducted by the parties in a piecemeal fashion.

As his Honour found, the issue of credit was vital to the case of each party. ``I have come to the conclusion that it is unsafe to accept the evidence of either the husband or the wife on several crucial issues unless that evidence is corroborated.'' He found that ``not only does the course of conduct of the parties in relation to property after their separation when compared with their explanations stretch credulity but, as witnesses, their evidence is badly tainted by the fact that following separation they invested a substantial sum of money in a joint account in false names...''.

A number of witnesses were called by the parties to corroborate their respective versions, but none was able to give direct evidence as to the disposition of the disputed $35,000.

In these circumstances his Honour appears to have given significant weight to an affidavit of Mr L.

Mr L's affidavit had been filed on behalf of the wife. It contained matters of a hearsay nature and matters of opinion which could well have been objected to on behalf of the husband.

It included the following statement as to the wife:

``I was concerned as over the last two months her demeanour and attitude indicated to me that she was extremely fearful of her husband committing further acts of violence against her.''

His Honour placed reliance upon the material in Mr L's affidavit. For instance, he said:

``The Court accepts the affidavit evidence of Mr L, from which it follows that it accepts the evidence of the wife as to that interview...''

Mr L's affidavit as to the wife's fear of the husband was in conflict with the evidence of Mr G that the wife did not appear to be timid or influenced by the husband. His Honour brought Mr L's affidavit into account in his finding that:

``Mr L's impression of the wife when acting for her was that she was in fear of the husband. Mr G said both struck him as fairly strong persons and neither domineered the other. He said the wife contributed to the instructions that he was being given and on one occasion evidenced anger when her voice rose. He said she did not appear to be timid or influenced by the husband — that she was well balanced and made her own contributions about what she thought should happen. Perhaps the wife showed more control before Mr G than she did before Mr L some three months earlier, but it is clear from the evidence that the husband has been able to prevail upon the wife to do his will from time to time, just as he has been able to prevail upon Mrs X, although apparently without resorting to violence. The Court is not persuaded that the wife agreed without fear or duress to accept $20,000 in lieu of $50,000 by way of settlement in April 1986.''

The issue of whether the wife was in fear of the husband is not directly relevant to the question of the disposition of the sum of $35,000, but in the absence of direct evidence as to this sum it was of major indirect relevance. On an issue which depended largely upon credit, it was the husband's case that the wife would not have delayed for seven months before taking proceedings if he had, as she alleged, defrauded her of the money. On the other hand it was the wife's explanation for the delay that she was in fear of him.

The difficulty with all this was that Mr L's affidavit, although it was on the court file, was not part of the evidence relied upon by the wife in support of her case. The fact that it was on the court file does not make it part of the evidence.

An affidavit which has been placed on the court file does not become part of the proceedings until it is opened to the court (Manson v. Ponninghaus (1911) V.L.R. 239). See also Barristers' Board of Western Australia v. Tranter Corporation Pty. Ltd. (1976) W.A.R. 65.

In the proceedings before his Honour affidavits of deponents who were called to give evidence were not read aloud but became part of the evidentiary material by counsel stating to the Court ``I formally read the affidavit into evidence''. The same result could have been achieved, as is the practice in other registries, by tendering a list of affidavits relied upon. A mere statement to the effect that reliance is placed on a particular affidavit could also be sufficient.

But in the matter the subject of this appeal no reference was made by either counsel to Mr L's affidavit, and indeed the solicitor for the wife conceded at the hearing of the appeal that his case at first instance did not proceed on the basis of Mr L's affidavit.

These circumstances give rise to the primary grounds of appeal, which although expressed in a number of ways in the notice of appeal, in substance raised the ground of an error in law constituted by reliance by his Honour upon an affidavit which was not part of the evidentiary material, thus constituting a denial of natural justice.

It follows from what we have said that Mr L's affidavit was not part of the evidence before his Honour. It follows further that the husband was deprived of the opportunity of objecting to what may have been inadmissible material in the affidavit, of testing it by cross-examination, or of calling evidence in rebuttal. He was deprived of the opportunity of making submissions on it.

In these circumstances his Honour's inadvertent reliance upon the affidavit in the course of arriving at his decision would seem on its face to constitute a denial of natural justice.

However, as the High Court held in Stead v. State Government Insurance Commission (1986) 161 C.L.R. 141 at p. 145:

``... not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.''

Thus, as the High Court said, an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary Judge at the first trial. But ``[i]t is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial'' (supra, pp. 145-146).

In the present case there was a deal of evidence other than the affidavit of Mr L from which his Honour could have found that the wife acted in fear of the husband. But on this issue there was also evidence to the contrary.

In those circumstances we are not able to be satisfied that his Honour's reliance upon Mr L's affidavit made no difference to the result.

Without Mr L's affidavit, which was referred to in detail in the course of his Honour's reasons, it might well have been that his Honour would have taken a different view of other evidence on this issue.

And in a case where credit was of such significance, it seems quite possible, if not likely, that his Honour's finding on the issue of the wife being in fear of the husband was a factor in his finding, contrary to the husband's case, that the wife had not received the $35,000 which was in dispute. And that finding was necessarily reflected in the order for property settlement which his Honour made.

Thus, in our view, the appeal must be allowed and the order of 22 April 1988 should be set aside.

As his Honour brought into account his findings as to the disposition of the $35,000 into account when he ordered the husband to pay costs in relation to the hearing, that order of 27 April 1988 should also be set aside.

As the matter is one involving credibility of witnesses, it is necessary for us to remit for rehearing before a Judge.

It is ordered as follows:

(1) that the appeal be allowed;
(2) that the orders of 22 April 1988 and of 27 April 1988 be discharged;
(3) that the matter be remitted to be reheard by a single Judge.