DELAHEY & GARRA-MARSH
[2014] FCCA 499
•14 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DELAHEY & GARRA-MARSH | [2014] FCCA 499 |
| Catchwords: FAMILY LAW – Maintenance – spousal maintenance – binding financial agreement relating to spousal maintenance – application to set aside binding financial agreement. CHILD SUPPORT – Binding child support agreement – application to set aside binding child support agreement. EVIDENCE – Objection to evidence – application to set aside applicant’s affidavits – inadmissible – prolix – irrelevant – scandalous – argumentative. WORDS & PHRASES – “prolix” – “scandalous” – “argumentative” – “embarrassing”. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.80C, 136 Evidence Act 1995 (Cth), ss.56, 131 Family Law Act 1975 (Cth), ss.90C, 90K Federal Circuit Court Rules 2001 rr.15.25, 15.28, 15.29 |
| Garra-Marsh & Garra-Marsh (No.2) [2012] FMCAfam 1135 Garra-Marsh & Garra-Marsh (No.3) [2012] FMCAfam 1144 Sheehan & Sheehan (1983) 9 Fam LR 115; FLC 91-352 |
| Applicant: | MS DELAHEY |
| Respondent: | MR GARRA-MARSH |
| File Number: | SYC 1541 of 2009 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 13 March 2014 |
| Date of Last Submission: | 14 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2014 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Levy |
| Solicitors for the Respondent: | Abrams Turner Whelan Family Lawyers |
ORDERS
The affidavit of the Applicant affirmed on 17 February 2012 is inadmissible save and except for:
(a)the first three paragraphs on the third page of the affidavit; and
(b)the paragraph numbered 56 on the forty-first page of the affidavit, commencing with the words “At no point” and ending with the words “remain undisclosed” on the second line of the forty-second page.
Pages 1 to 15 inclusive of the affidavit of the Applicant affirmed on 19 April 2012 are inadmissible.
Pages 19 to 25 inclusive of the above affidavit are inadmissible save and except for the final two paragraphs on page 25.
Pages 33 to 35 of the above affidavit are inadmissible.
The affidavit of the Applicant of 1 May 2012 is prolix and embarrassing and is struck out.
The affidavit of the Applicant of 9 May 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 18 May 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 19 June 2012 is prolix and embarrassing and is struck out.
The affidavit of the Applicant of 11 July 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 23 July 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 2 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 7 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 20 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 21 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 4 September 2012 is prolix and embarrassing and is struck out.
The affidavit of the Applicant of 5 October 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 4 March 2014 is inadmissible as to the following paragraphs:
(a)[51] to [113] inclusive;
(b)[154] to [162] inclusive; and
(c)[169] to [197] inclusive.
Paragraphs [114] to [122] and [163] to [174] of the affidavit of the Applicant of 4 March 2014 are scandalous and struck out under Rule 15.29.
The affidavit of the Applicant of 12 March 2014 is inadmissible as to the following paragraphs:
(a)[1] to [23] inclusive; and
(b)[63] to [70] inclusive.
The Financial Statement filed by the Applicant on 12 July 2012 is inadmissible.
IT IS NOTED that publication of this judgment under the pseudonym Delahey & Garra-Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1541 of 2009
| MS DELAHEY |
Applicant
And
| MR GARRA-MARSH |
Respondent
REASONS FOR JUDGMENT
Application
This is an interlocutory decision concerning the objections by the Respondent to the affidavits filed and sought to be relied upon by the Applicant, his former wife. The decision has been reduced to writing to assist the parties particularly the Applicant, who is self-represented in the future progress of the matter. The Respondent submits that the affidavits, of which there are sixteen, are prolix, inadmissible, irrelevant, scandalous and argumentative.
The Respondent relies on the provisions of Rules 15.25, 15.28 and 15.29, and the decision of Hogan J in Sheehan & Sheehan.[1]
[1] (1983) 9 Fam LR 115; FLC 91-352
The Substantive Application
The proceeding before the Court concerns the Applicant’s Application, originally contained in a Response to set aside two binding financial agreements, one relating to spousal maintenance and one relating to matrimonial property and a binding child support agreement.
The parties entered into a Binding Financial Agreement relating to spouse maintenance and a Child Support Agreement on 17 April 2009. On 9 August 2009 they entered into a further Binding Financial Agreement dealing with property issues.
The Applicant filed an Application in a Case on 12 July 2012 seeking orders:
a)varying the spouse maintenance to $2,500.00 per week;
b)that the Respondent should pay her lump sum spouse maintenance of $100,000.00; and
c)that the child support paid by the Respondent should be varied to provide a lump sum of $50,000.00 in addition to the weekly payment of $370.00.
On 24 October 2012 I handed down a decision[2] in which I:
a)dismissed the Application in a case;
b)ordered the Respondent to file an affidavit particularising the costs and disbursements he sought in connection with his Application for Costs;
c)directed the Applicant to file and serve an Amended Application particularising the legislative bases upon which she relies on seeking to set aside the Binding Financial Agreements and the Binding Child Support Agreement;
d)directed the Applicant to file and serve an affidavit setting out the evidence upon which she sought to rely on the final hearing;
e)directed the Respondent to file and serve and Amended Response and an affidavit setting out the evidence upon which he sought to rely on the final hearing; and
f)directed that all affidavits filed must comply with the requirements of Rule 15.25 “in that they must be divided into paragraphs numbered consecutively with each paragraph being as far as possible confined to a distinct part of the subject of the affidavit”.
[2] Garra-Marsh & Garra-Marsh (No.3) [2012] FMCAfam 1144
No Amended Application has been filed. However, the Applicant has filed two affidavits since that date on 4 and 12 March 2012. However, she told the court on the first morning of the hearing that she also sought to read the other fourteen already filed, as well as a Financial Statement filed on 11 July 2012.
Objections to Affidavits
The Respondent complains that the Applicant’s affidavits are prolix, inadmissible, irrelevant, scandalous and argumentative.
It is also submitted that the affidavits do not comply with Rule 15.25, requiring affidavits to be divided into individually numbered paragraphs or Rule 15.28, which requires annexures to be paginated.
The Respondent also relies on the decision of Hogan J in Sheehan & Sheehan[3] where his Honour held at 117 and 78,360:
I do not propose to set out in detail and thereby compound the approach made by the draftsman, the whole of the irrelevancies and unreasonable detail included in the affidavit. It included unreasonable and unwarranted innuendos of malpractice and other persons…The drafting of any affidavit must to some extent depend upon the subjective judgment of the draftsman, but there must, in my view, be a limit beyond which it must be apparent that the affidavit is becoming unnecessarily prolix and oppressive.
[3] supra
His Honour went on to hold at 118 and 78,361-2:
Were these affidavits allowed to stand, then the husband is faced with their contents, knows that the contents are to be used, would go to trial not knowing how they were to be used, but only that they were to be thrown at his head in the hope of something being made out of them. He would necessarily be put to great expense in being required to plead to each of the allegations made…I think that the affidavits are embarrassing both from the excessive length at which the statements of fact are set out, both those that are necessary and those that are unnecessary, and the husband is put in a position of not easily understanding whether he is to be affected by all or any of those matters or not. He ought not to be embarrassed by having to deal with them…
It is, of course, open to the court to go through each and every one of the 860 separate paragraphs and delete therefrom material which should be deleted either pursuant to the sub-reg or under the inherent power of the court because it constitutes the whole or part of oppressive material. But, in my view, the proportion of that material which should be excised from the affidavits is so great that if the matter is to be disposed of with any regard to convenience, it is clearly right that the whole of those affidavits should be removed from the file rather than by seeking by expunging the offending material, to put the affidavits in order.
The Procedure Adopted
The Applicant is not legally represented, although she has been for two relatively short periods beforehand. I explained to the parties that I would read through all the affidavit material and hear submissions from both parties as to whether the affidavits should be admitted or not.
Mr Levy of Counsel for the father, submitted that he would prefer to wait until I had read the affidavits before making his submission and I extended that same concession to the Applicant. I also said that as the Applicant is not represented, I would also consider the admissibility of the Respondent’s affidavits. Mr Levy did not demur from that course.
I have read the affidavits. The Applicant seeks to rely on all sixteen of her affidavits, some of which are indeed very lengthy. Mr Levy told the Court that he believed that the Applicant’s material, including annexures, exceeded 2,200 pages. The Applicant submitted that the Respondent is a (omitted) and both he and his legal advisers should be used to reading lengthy documents.
Principles to be followed
As I explained, it is a basic requirement for evidence to be relevant to be admissible. This is made clear by the Evidence Act 1995 (Cth), which states at s.56:
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
In determining the relevance of evidence sought to be adduced, the court must keep in mind the subject matter of the proceeding. To be relevant, the evidence must go in some towards establishing the case that the party wishes to put to the court. The golden rule is to ask “what is the purpose of this evidence?”. If the purpose is not to establish the party’s case, why then should the evidence be admitted? How can it be relevant?
Rule 15.29(1) provides that:
(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative;
Whilst some of those terms are immediately clear to a lay person, the words “prolix”, scandalous”, “argumentative” and “embarrassing” are more in the way of legal terms of art.
The word “prolix” is defined by the Macquarie Dictionary (Revised Third Edition) as meaning:
extended to great, unnecessary, or tedious length; long and wordy.
The word “scandalous” in a legal sense is defined by Osborne’s Concise Law Dictionary (Eighth Edition) as:
The allegation in pleading of anything unbecoming to the dignity of the court to hear, or contrary to good manners or which unnecessarily charges some person with crime or immorality.
The same work also defines “an argumentative affidavit” as:
An affidavit which contains arguments as to the bearing of facts on the matter in dispute.
The word “embarrassing” is used in the sense referred to in the Macquarie Dictionary of “(making) difficult or intricate, as a question or a problem, complicate” or “(putting) obstacles or difficulties in the way of; impede”.[4]
[4] Macquarie Dictionary, (Revised Third Edition) page 615
Affidavits should be confined to the recitation of asserted facts and should not contain a submission about the party’s case.
An Examination of the Affidavits
I have examined the Applicant’s affidavits with the above principles in mind. The sheer number and bulk of the affidavits adds weight to the Respondent’s submissions as to their prolixity.
The Affidavit of 17 February 2012
The affidavit contains 47 unnumbered pages of text, all but two of which refer entirely to the parties’ parenting proceedings which were finalised on 24 October 2012.[5] The paragraphs are numbered with bullet points for the first 19 pages, are then unnumbered for several pages and then bear paragraph numbers corresponding to paragraphs of an earlier affidavit of the Respondent.
[5] Garra-Marsh & Garra-Marsh (No 2) [2012] FMCAfam 1135
The first three paragraphs on the third page of the affidavit and part of the paragraph numbered 56 on page 41, beginning with the words “At no point” and ending with the words “remain undisclosed” on the second line of page 42 appear to be relevant. The balance of the affidavit is irrelevant and will be struck out.
The Affidavit of 19 April 2012
The pages of this affidavit are numbered from 1 to 35 although the paragraphs are not. The pages of the annexures (“A” to “LL”) are numbered.
Pages 16 to 18 of the affidavit appear to be relevant to the Applicant’s case. Pages 23 to 25 except for the final two unnumbered paragraphs are argumentative and therefore inadmissible.
Pages 25 (final two paragraphs only) through to 32 appear to be relevant, although parts are argumentative.
The Affidavit of 1 May 2012
This affidavit has 58 numbered pages and a 97 page Annexure that is not paginated. The paragraphs are not numbered. The text of the affidavit is a rambling, argumentative dissertation referring to numbers of people whose relevance is largely unexplained. One person mentioned is a Mr R, although the Applicant claims on page 1 of the affidavit that one Mr K impersonated him, for no apparent reason.
The entire affidavit is not only prolix but full of irrelevancies, speculation, supposition and submission. Applying the decision in Sheehan, I consider that the affidavit should be struck out in its entirety.
The Affidavit of 9 May 2012
This affidavit is inadmissible for two reasons. The first four unnumbered paragraphs and Annexure “A” refer to people named Ms C, Ms E, Ms S and Ms T and provide short biographies of them. Their relevance to the matters in dispute is entirely unexplained.
The balance of the affidavit refers to correspondence with the Respondent’s solicitors about parenting matters, including proposed terms of settlement. Not only is this material entirely irrelevant but is inadmissible under s.131 of the Evidence Act, which provides for the exclusion of evidence of settlement negotiations.
The affidavit is inadmissible in its entirety.
The Affidavit of 18 May 2012
There are no page numbers to this affidavit. The applicant now deposes that the identity of the man who she claims impersonated Mr R is one Mr A, a (occupation omitted). The relevance of this and the rest of the text, is unclear. The Applicant makes the extraordinary claim that the signature purporting to be that of Mr R “looks to me, to be an obviously false one”. The basis for this assertion is not explained.
The annexures again relate to settlement negotiations relating to the parenting proceedings.
The affidavit is inadmissible in its entirety.
The Affidavit of 19 June 2012
There are 36 unpaginated pages of text and a much larger number of pages of Annexures. The paragraphs are unnumbered. The text consists of:
a)obviously irrelevant matters relating to the parenting proceedings;
b)speculation;
c)supposition;
d)submissions; and
e)financial matters whose significance is unexplained.
The affidavit is prolix and embarrassing. It will be struck out.
The Affidavit of 11 July 2012
This affidavit consists of 11 unnumbered pages of text with no paragraph numbering. The subject matter refers to the Applicant’s claims for spousal maintenance and lump sum child support which were dismissed on 24 October 2012.
The affidavit is irrelevant and therefore inadmissible in its entirety.
The Affidavit of 23 July 2012
This affidavit contains 10 unnumbered pages. The paragraphs are unnumbered. The text refers to a woman called Ms L, a woman called Ms J, a dissertation about the names on the birth certificates of the Respondent and his siblings, Christmas cards from the Respondent’s parents (which the Applicant found intimidating), a submission about the sale record of Property G, the Respondent’s Twitter and Facebook pages, a complaint about correspondence from the Respondent’s solicitors, a claim that she can find no record of the Respondent’s marriage to his current wife and speculation about the identity of a child born in 1999 called X.
The affidavit is without any relevant material and is inadmissible.
The Affidavit of 2 August 2012
This affidavit consists of 12 unnumbered pages of text with no paragraph numbers. The Annexures refer to a (religion omitted) Bishop and some material downloaded from the Internet about (religion omitted) priests who were charged with child abuse.
The text of the affidavit contains speculation that the Respondent in some way arranged for them to undertake a false marriage. The speculation appears to be quite fanciful and does not appear to bear any relevance to the Applicant’s claim that the Respondent failed to make a full financial disclosure when the parties entered into the financial agreements and the child support agreement.
The affidavit is entirely irrelevant and therefore inadmissible.
The Affidavit of 7 August 2012
This affidavit contains 14 unnumbered pages divided into unnumbered paragraphs. It largely contains speculation about the Respondent’s financial investments, claims about the Respondent’s current wife and a former girlfriend and several paragraphs about the woman Ms C who is apparently a (occupation omitted) in (country omitted):
I have no doubt Mr Garra-Marsh played a very supportive role with regards to Ms C’s appointment as the (occupation omitted) of (country omitted) – and indeed her involvement in the (omitted).
The affidavit also refers at some length to a friend of the respondent named Mr M, who she believes to be a (occupation omitted) in (omitted):
I note that Mr M has (omitted) over the years (omitted) the (religion omitted) community in Australia, racism etc – a man with this sort of background and (omitted) disposition would be right up Mr Garra-Marsh’s alley.
The affidavit also refers to the Respondent’s younger brother and his father, the latter of whom she claims behaved inappropriately towards her on some unspecified occasion.
The affidavit appears to me to be irrelevant and is therefore inadmissible.
The Affidavit of 20 August 2012
This affidavit is very lengthy, without page numbers or paragraph numbers. There are many pages of annexures, all unpaginated. The text of the affidavit refers to directorships of companies with dates of birth in 1970. I asked the Applicant to explain the significance of this evidence and I was unable to follow the logic of her explanation at all.
I am not satisfied that the affidavit is relevant and I find it to be inadmissible. It will be set aside.
The Affidavit of 4 September 2012
This lengthy affidavit, without page numbers or paragraph numbers, gives a further lengthy list of companies with a 1970 birthdate. It also revisits her claim that her marriage to the Respondent was in some way suspect, claiming that she checked the records at the Church where they were married and found that:
The Church certification is inconsistent with the certification issued from the NSW legal registry.
None of this evidence appears to me to go any way towards being relevant to the Applicant’s case to set aside the three agreements.
The affidavit is prolix, embarrassing and irrelevant. It will be struck out.
The Affidavit of 21 August 2012
This short partly handwritten affidavit seeks to annex a document that was not previously annexed to an earlier affidavit. The annexure refers to a company called (omitted). There is no reference to any connection with the Respondent.
The affidavit is irrelevant and therefore inadmissible.
The Affidavit of 5 October 2012
This affidavit comes with page numbers, 206 of them. The paragraphs are not numbered. It sets out details of many companies but provides no link to the Respondent other than to refer to directorship records with 1970 birthdates.
The Applicant sets out her view of why this material is all relevant by stating on page 1:
Since the 2nd October – the 1970 birthdates from online Directorship records have been deleted, so that no birthdates remain shown.
Mr Garra-Marsh is clearly very busy attempting to wipe out this key piece of evidence.
This evidence can only be described as fanciful. The affidavit is irrelevant in its entirety and therefore inadmissible.
The Affidavit of 4 March 2014
This is a lengthy affidavit of some 52 numbered pages and a large number of unpaginated Annexures from “A” to “S”, including a large number of searches of various companies.
There are 207 numbered paragraphs. I asked the Applicant about the relevance of a number of topics in the affidavit without receiving a convincing answer about any of them.
The Applicant’s claim that the Royal Mail postal system was tampered with in paragraphs [51] to [53] appears to be fanciful and unsubstantiated. If it is alleged that the Respondent was responsible, this has not been made clear.
The connection in paragraph [54] to the discovery by a postman of the body of one Mr D, whom the Applicant describes as “our falsely documented marriage celebrant”, appears to be fanciful to say the least. The Applicant describes the man as “bleeding to death from a grievous head wound in the garden at his (country omitted) home in early 2012”. It is not clear whether the Applicant wishes to insinuate that the Respondent was in some way responsible for the man’s death, although she provides him with an alibi in her affidavit by noting that he and she were commencing their parenting litigation in this Court at the time. The Applicant did say that the Respondent’s parents came from (country omitted), but this does not make the evidence relevant.
The Applicant refers in paragraphs [88] to [90] to having been stalked by a part aboriginal man in (omitted) in March 2012, but there is no obvious connection to the Respondent, let alone any connection with the parties entering into the financial agreements in April and August 2009. The evidence is irrelevant and therefore inadmissible.
The Applicant’s claim in paragraphs [95] that on one occasion she and the Respondent walked through an underground car park in (country omitted) prior to their separation when they saw some expensive sports cars parked there, including a Ferrari and a Lamborghini, is somehow evidence that the Respondent owned them, is also far-fetched and irrelevant.
Similarly, the Applicant refers to the Respondent insisting that she watch the film “(omitted)” with him prior to their separation in 2008 does not go any way to proving anything about the financial agreements.
The balance of the affidavit refers to the Applicant’s claims about the Respondent’s taste in music, an incident when she was burned at a hotel when she was pregnant and an alleged sexual assault on the parties’ child in the 2012/2013 school holidays which cannot be at all relevant to the matters before the Court. The applicant’s explanation of the relevance of the latter incident was, to say the least, unconvincing.
The Applicant also accuses the Respondent of having used illicit drugs, including cocaine. The relevance of this is not apparent.
Paragraphs [184] to [192] refer to the Applicant’s friendship with a woman named Ms A, which came to an end when Ms A abruptly terminated their friendship in August 2008. The Applicant’s explanation of the possible relevance of this to the financial agreements entered into the next year was unconvincing, to say the least.
Paragraphs [114] to [122] and paragraphs [163] to [174] of the affidavit make allegations about the behaviour of the Applicant’s former solicitor. They are scandalous and will be struck out.
Paragraphs [154] to [162] relating to some people named Ms B and Mr R are clearly irrelevant. Paragraphs [169] to [183] are also clearly irrelevant.
There are other paragraphs in this lengthy affidavit which are of dubious relevance, but time does not permit a more detailed examination. I have concentrated only on the most egregious examples of inadmissible material in this affidavit.
The Affidavit of 12 March 2014
The Applicant filed this affidavit a day before the commencement of the hearing. Her explanation was that it was necessary to reply to a recent affidavit of the Respondent’s current wife sought to be filed by the Respondent.
The affidavit has numbered pages and numbered paragraphs. Paragraphs [1] to [23] are argumentative. They are in the nature of a submission and do not represent evidence. They are inadmissible.
Paragraphs [24] to [62] are of dubious relevance, at best.
Paragraphs [63] to [70] are argumentative and therefore inadmissible.
The Financial Statement
This document was filed on 12 July 2012 in support of the Applicant’s claim for variation of spousal maintenance and lump sum child support. These matters were disposed of on 24 October 2012. The Financial Statement is not relevant to this proceeding.
The Respondent’s Affidavits
The Respondent relies on three affidavits:
a)his affidavit of 3 March 2014;
b)the affidavit of Ms G of 24 May 2012; and
c)the affidavit of Ms G of 11 March 2014, filed in court by leave on the first day of the hearing.
I do not see anything that appears to be inadmissible in any of those affidavits.
This decision is to be handed to the parties so that they may consider the future progress of the matter in the time remaining.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 14 March 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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Expert Evidence
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Remedies
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Costs
2
2
5