DOW & HENCKEN (No.2)

[2018] FCCA 3047

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOW & HENCKEN (No.2) [2018] FCCA 3047

Catchwords:
FAMILY LAW – Divorce – application to cross-examine the wife – application refused.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS DOW

Respondent: MR HENCKEN

File Number: SYC 4803 of 2012

Judgment of: Judge Henderson

Hearing date: 4 July 2018

Date of Last Submission: 4 July 2018

Delivered at: Sydney

Delivered on:             5 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Clifford

Solicitors for the Applicant: Uther Webster & Evans

Counsel for the Respondent: Mr Holmes

Solicitors for the Respondent: KD Holmes Solicitors

ORDERS

1. The husband’s application to cross-examine the wife is refused.

IT IS NOTED that publication of this judgment under the pseudonym Dow & Hencken (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4803 of 2012

MS DOW

Applicant

And

MR HENCKEN

Respondent

REASONS FOR JUDGMENT

1. This is an application of a defended divorce that I am hearing today. I have read, in support of the wife’s application for the divorce, her application for divorce, amended application for divorce and her affidavit of 22 June 2018.

2. The husband objects to the divorce going ahead on the grounds he says there is a reasonable prospect of reconciliation. His evidence is contained in his affidavit of 15 June 2018, his amended response to the divorce and the response to the divorce. I have asked Mr Holmes what part of the wife’s affidavit or evidence he would seek to cross-examine her on.

3. He told me it is the prospect of reconciliation he would question her on. It is as clear as can possibly be made by the wife, not accepted by the husband, as is his right, but clear as can possibly can be said by this wife, if for no other reason contained in her solicitor’s letter of 5 June 2018 which is in answer to a letter from the husband’s lawyer of 31 May, which is:

   Our client wants to resolve matters with your client –

4. Which is the divorce. That is the only matter before the Court at the moment:

   He asks parties attend upon a marriage counsellor.

5. And he names someone:

   She has these dates. It’s $200 a session. He will pay. Our client hopes your client will accept this proposal. Please advise which date is suitable.

6. The answer to that is contained in the letter of 5 June 2018:

   Our client’s position is clear and has been for many, many years. The marriage is over and she has no interest in attending and will not attend marriage or any other type of counselling. Please withdraw your response.

7. Her affidavit filed in these proceedings on 22 June 2018 says this at the end paragraph 65:

   I seek to reassure the Court that for me, the marriage irretrievably broke down in June 2010 and that at no time since that date have I ever considered or communicated to Mr Hencken I would return to the relationship or resume the marriage.

8. I see no justification for cross-examining the wife on her position in relation to her marriage. It would be an abuse of process of the Court and given the wife’s evidence contained in her affidavit, in addition to her clear as a bell statement in her letters, that the cost to her mentally, physically, emotionally and financially of dealing with the father is so great that she now fears for her wellbeing and she continues to worry about her children and the attitude this is having upon her, on the children, and it is an imperative that the divorce be granted.

9. That is clearly a factor I take into account and to the utility, the forensic value of any cross-examination. The fact that the husband is of the view that there is some prospect of reconciliation does not persuade me that I would allow this lady, who has made out clearly a ground of irretrievable breakdown of marriage, communicated to the husband on many occasions, no less than by filing the application for divorce, which the husband refuses to accept, as the law permits him to do, that there would be no utility or forensic value. Indeed counting the cost to the wife emotionally of cross-examination on this very difficult topic for her, which she has communicated to the husband, would not assist the Court and I refuse any leave for the wife to be cross-examined in this defended divorce.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Date: 25 October 2018