Emmett & Emmett

[2010] FamCA 56

FAMILY COURT OF AUSTRALIA

EMMETT & EMMETT [2010] FamCA 56

FAMILY LAW – PROPERTY – leave to tender new evidence after the conclusion  of the evidence and submissions but before the delivery of judgment

Family Law Act 1975 (Cth) s 90MZD(1)

Reid v Brett (2005) VSC 18 (8 February 2005)

Smith v NSW Bar Association (1992) 176 CLR 256

APPLICANT: Ms Emmett

RESPONDENT: Mr Emmett

FILE NUMBER: TVF 2766 of 2000

DATE DELIVERED: 21 January 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: Ms Pack, Senior Counsel

SOLICITOR FOR THE RESPONDENT: Wilson Ryan & Grose

Orders

1. Leave be granted to the wife to tender a letter written to the Manager T Superannuation Fund dated 17 March 2009 and a letter received by the wife from T Super dated 14 April 2009 and those documents will be marked Exhibit QQQ. 

2. Otherwise the wife’s application filed on 14 July 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Emmett & Emmett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: TVF 2766 of 2000

MS EMMETT

Applicant

And

MR EMMETT

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application filed by the wife on 14 July 2009 to adduce further evidence in relation to a hearing that was finalised before me on 16 April 2009 where judgment had been reserved. That hearing related primarily to an application for final orders filed by the wife on 30 July 2008, in which she sought pursuant to s 79A Family Law Act 1975 (Cth), that consent property orders dated 11 September 2001 be set aside and new orders be made in their place.

2. This interim application was supported by an affidavit filed on 14 July 2009 in which the wife sets out under various headings the specific evidence upon which she seeks to rely.

SHORT HISTORY

1. The wife was born in 1959.

2. The husband was born in 1962.

3. The parties married and commenced cohabitation in 1986.

4. There are three children of the marriage: J, born in August 1990 (19 years of age); R, born in November 1992 (17 years of age); and A, born in June 1994 (15 years of age).

5. The parties separated on 5 November 2000 after over 14 years of cohabitation.

6. Following separation, the children resided with their mother in the former matrimonial home.  From March 2001 until April 2007 the children resided with their father.

7. On 11 September 2001 final consent orders for parenting and alteration of property interests were made.  In an amended application for final orders filed on 30 July 2008, the wife is seeking that those orders be set aside.  That application was heard by me over eight days between 16 to 20 March and 14 to 16 April 2009.  Final submissions had been made and I had reserved my judgment.

8. The wife wrote to the Court on 5 April 2009 indicating she wished to seek leave to make an application to adduce further evidence

9. On 15 June 2009 I granted leave to the wife to file a formal application and an affidavit in support of an application to be granted leave to adduce further evidence.  I made an order that within 28 days the wife file and serve a supporting affidavit setting out the nature of each item of evidence that is sought to be led and in respect of each piece of evidence, the basis upon which that evidence could be said to satisfy any of the following:

   11.1.the evidence is so material that the interest of justice requires that it be admitted;

   11.2.if believed the new evidence would affect the result of the hearing;

   11.3.there would be no prejudice to the other party which cannot be rectified by something like a costs order;

   11.4.whether the new evidence could not have previously been discovered with due diligence prior to either of the two blocks of hearing days during which the final hearing was completed to final submissions;

   11.5.the impact of the new evidence would not affect the proper, orderly and timely determination of the trial;

   11.6.any other matter that might be relevant to the issue of whether or not the case should be reopened to allow that piece of evidence.

10. On 14 July 2009, prior to me delivering my reasons for judgment in relation to the above proceedings, the wife filed a formal application to adduce further evidence.

11. The wife’s application to adduce further evidence was listed before me on 12 August 2009.  Both parties were given the opportunity to make oral submissions on that day.  The wife had prepared written submissions for the original mention on 15 April 2009.  The husband provided a written case outline.

APPLICATIONS

The wife

1. On 14 July 2009 the wife filed an application in a case to adduce further evidence.  She also filed an affidavit on the same day, sworn on 13 July 2009 which contains the additional evidence upon which she seeks to rely.

The husband

1. The husband filed a response to the wife’s interim application on 29 July 2009, seeking that that application be dismissed and that the wife be ordered to pay the husband’s costs of the proceedings.  The husband filed affidavits on 29 July 2009 and 10 August 2009 in support of his case.

GENERAL PRINCIPLES

1. In Reid v Brett (2005) VSC 18 (8 February 2005) Habersberger J said:-

   41.  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[1]

   [1] Re: Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-494 per Toohey J, citing Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 and Murray v Figge (1974) ALR 612

2. In Smith v NSW Bar Association[2], the High Court of Australia stated that in such a situation (an application to re-open before judgment) it was difficult to see why:-

   The primary consideration should not be that of embarrassment or prejudice to the other side.[3]

   [2] [1992] HCA 36;(1992) 176 CLR 256

   [3] At 267 per Brennan, Dawson, Toohey & Gaudron JJ

3. These proceedings are adversarial.  A party is normally bound by the conduct of her case at trial whether or not she is legally represented.  A Court has discretion to allow a party to re-open her case and to call further evidence.  Ultimately whether or not that is allowed is a matter of overall justice to both parties to the proceedings. Some of the considerations which are relevant include those matters which I referred to in the order that I made on 15 June 2009 (see above) and in the authorities to which I have referred.  Leave is not normally granted simply so that a party might bolster, with further evidence, an issue that was in dispute at the trial.

THE HISTORY

1. In considering this application to re-open the evidence one must have some regard to the history of the litigation. The application for final orders is an application made by the wife pursuant to s 79A Family Law Act 1975 (Cth), to set aside property orders that were originally made on 11 September 2001. One application to re-open the property settlement, made by way of an application filed on 2 January 2002, was dismissed on 11 February 2002. On 21 January 2004 the wife filed a further application seeking that the 2001 property orders be set aside. That application was summarily dismissed by Monteith J on 11 October 2004. On 22 November 2006 the Full Court upheld the wife’s appeal in relation to that summary dismissal and the Full Court remitted the matter for retrial. The remitted hearing was originally listed before Carter J on 12 and 13 June 2007 but the matter was not ready to proceed at that time.

2. The matter was heard by myself over a period of eight days in March and April 2009. 

3. At that hearing ten people gave evidence.  Extensive material was tendered (the exhibit list currently goes to exhibit PPP).  The wife tendered at least 28 individual documents or groups of documents.

4. I set out this history to make it clear how much time both sides in this case had to prepare their material and how much written and oral evidence was offered at trial.

5. At the commencement of the eight day hearing senior counsel for the husband took objection to considerable amounts of material that the wife sought to rely upon.  A not insignificant number of those objections were successfully taken.  The wife attempted to tender material during the trial which was also objected to and again some of those objections were successful.

6. The assets in this case are not extensive.  The husband is paying for his own legal representation.

THE ADDITIONAL EVIDENCE THAT THE WIFE SEEKS TO ADDUCE

1. The additional evidence that the wife now seeks to adduce is contained in her affidavit filed 14 July 2009.  I will consider each piece of evidence, and the extent to which, if there is any basis, to allow it.

Superannuation

1. The wife seeks to adduce into evidence a letter that she wrote to my associate dated 5 May 2009.  A copy of the letter of 5 May 2009 appears to have been sent to the husband’s solicitors.    The wife’s affidavit filed 14 July 2009 says that the letter is annexed to her affidavit but it is not.  The wife’s letter attaches a letter from T Super.  The wife, without leave, had previously forwarded after the conclusion of the hearing under cover of a letter dated 20 April 2009, a letter sent to the Manager of T Superannuation Fund on 17 March 2009 providing them with notice of the superannuation splitting order that she sought.  There is no indication that the husband received a copy of that letter and the wife did not seek leave to put that letter into evidence but I infer that she meant to.

2. The wife in her substantive application (in the event that her application under s 79A was successful) seeks, amongst other things, an order for the splitting of the husband’s superannuation. The purpose of this communication with T Company was for the wife to satisfy the requirements of s 90MZD(1) Family Law Act 1975 (Cth). That subsection says that the Court cannot make an order of the nature sought by the wife unless the trustee of the superannuation fund had been accorded procedural fairness in relation to the making of the order. So the order sought by the wife in the substantive hearing could not be made unless I was satisfied that procedural fairness had been given to the trustee. This evidence fulfils a technical requirement involving the rights of a third party and does not directly impact upon the husband’s rights. The husband did not, in fact, indicate that he objected to the substance of anything that was in the correspondence. In the circumstances I will grant leave for the wife to tender into evidence the letter that she wrote to the trustee of the superannuation fund on 17 March 2009 and the letter received in reply from the trustee dated 14 April 2009.

3. The applicant seeks to tender an affidavit by Mr SK (Annexure B to the wife’s affidavit).  An objection was successfully taken to the wife relying upon the affidavit of Mr SK at the trial and any remedy which the wife may have in relation to that ruling lies elsewhere. 

4. The applicant also seeks to rely on further evidence in chief relating to issues regarding superannuation generally.  No leave is granted to the applicant to re-open to give that evidence because much of the proposed evidence is comment, argument, but in any case was referred to by the applicant in her trial affidavit.  Further all of these issues were or could have been raised during the trial;

T Company subpoena

1. At paragraph 2 of her affidavit the wife refers to a T Company subpoena and describes the information in it as extremely relevant to the outcome of the hearing.  This material shows monies received by the husband in relation to redundancy, long service leave and superannuation as a result of his 25 year employment with T Company, and according to the wife, is relevant in demonstrating the husband’s capacity to purchase and fully pay out the mortgage on his home at H in 2006, as well in showing the difference between the husband’s earning capacity and the wife’s earning capacity in 2001 and currently.

2. The wife’s explanation for not tendering this material during the hearing is that she asked the “Clerk of the Court” to give it to her, but he refused and told her that she had to ask for it during cross-examination.  The wife states that although “it was discussed through out [sic] the cross-examination and referred to in my evidence in chief I simply forgot to tender the [T Company] subpoena”.

3. The husband states in his affidavit filed 29 July 2009 that the T Company records (Annexure C to the wife’s affidavit) are incorrect and incomplete.  Senior Counsel for the husband submitted that to permit the tender of the records would prejudice the husband, particularly due to the fact that the documents contained in the file were not put to him during cross-examination. 

4. It is difficult to see how the husband’s redundancy payout in 2006 could have any relevance to the wife’s application under s 79A(1)(a) Family Law Act 1975 (Cth). They might at best have some relevance to the issue of hardship in respect of the wife’s application to s 79A(1)(d) although I will find that the wife did not successfully establish “circumstances of an exceptional nature” which would give rise to that ground in any event.

5. The more fundamental point to make however is that there seems to be no real issue that the redundancy money went into assisting in developing the equity in the husband’s current property.  The fact that the husband received a redundancy payout was not a matter that was kept from the Court during the trial (see paragraph 14 of the husband’s affidavit sworn on 2 March 2009).

6. I find that this evidence does not fall within any of the relevant categories.  I note that the wife now seeks to adduce additional evidence in respect of issues that were dealt with during the hearing.  To allow her to do so, when the evidence should have been put to the husband during cross-examination, would cause the husband prejudice that could not be rectified by something like a costs order.  It would also cause further delay in the final determination of this matter.  I note also the wife’s explanation that she “forgot” to tender the material during the hearing.  The wife is an intelligent woman who now has some experience being in court and her explanation is not adequate.

Subpoena of EN Company Pty Ltd

1. The wife states that Annexure D of her affidavit (which is a letter from the Managing Director of EN Pty Ltd) shows that the husband is entitled to a further $20,000 superannuation from EN Pty Ltd.  The wife states that this material affects matters such as the calculation of child support, and should therefore be admitted.  The wife’s explanation for not tendering this material during the hearing is that it “was also one of the subpoena which I asked the Clerk of the Court to give to me before ceasing the cross-examination” and I infer the wife is saying she forgot to attempt to tender it.

2. In his affidavit filed 29 July 2009 the husband gives this amount as $13,694, and states that he has been advised by the liquidator of the company that it is unlikely that any of that debt will be paid.  During the hearing of this application on 12 August 2009, the wife acknowledged the husband’s statement in his affidavit that he believes the money will not be paid, however she maintained the position that the money should still be taken into account.

3. Senior Counsel for the husband submitted that the wife should not be granted leave to adduce this further evidence due to the fact that EN Pty Ltd answered the subpoena by letter dated 16 July 2008; the evidence was available during the hearing; and the subpoenaed documents were neither called for formally or, if called for informally and produced by the wife, were not put to the husband.

4. I am not of the view that this evidence falls within any of the relevant categories that would allow the wife to adduce it.  First and foremost I note that a debt owed to the husband by a company in liquidation and in respect of which he has received advice that it is unlikely to be paid, can hardly be said to be so material that the interest of justice requires evidence to be admitted which might indicate that the amount the husband referred to was out by about $6,000.  Any effect that the evidence of this debt would have on the result of the hearing would be so negligible that it would easily be outweighed by considerations of the delay caused in the determination of the trial and the prejudice caused to the husband in having to give evidence and be cross-examined about it.

Subpoena of the Bank of Queensland

1. The applicant seeks to tender documents subpoenaed from the Bank of Queensland (Annexure E) and inferentially to serve the Bank of Queensland with a further subpoena. 

2. Senior Counsel for the husband correctly makes the observation that the subpoena is framed in objectionable and ambiguous terms and seeks the provision of information rather than documents.  Documents were sent by the Bank to the Court on 14 April 2009 and were approved by the Registrar of the Court for perusal and photocopying on that day.  The 14 April 2009 was the sixth day of the eight day substantive hearing.  The wife at no time made any application before the Court in relation to the subpoenaed documents and did not seek to tender any of them during the hearing.  I infer from what the wife has said in her affidavit that she asserts she was unaware that the Registrar had granted her leave to inspect and photocopy the documents on 14 April 2009.  I am unsure as to whether or not the wife is being truthful about that but in any event, had she raised the matter in Court on 14, 15 or 16 April 2009 the Court could have drawn the wife’s attention to that order.

3. The documents produced by the Bank of Queensland appear to include:-

   42.1.a loan agreement between the Bank and the husband dated 17 December 2003 for $171,950.00 (this is a loan agreement entered into by the husband two years after the orders which are the subject of the dispute in the substantive proceedings were made);

   42.2.an application by the husband for a loan in the sum of $171,950.00;

   42.3.internal bank memorandums relating to this loan, a mortgage securing the loan;

   42.4.a number of illegible documents;

   42.5.an application by the husband and the wife for a loan of $19,000.00 on 17 June 1996; and

   42.6.a document described as a Variable Rate Queenslander Package Home Loan Schedule relating to a loan amount in the sum of $280,000.00 apparently dated 1 February 2008.

4. Needless to say none of that material was put to the husband in cross-examination nor is it clear to me what the wife asserts is the relevance of any of it. 

5. At paragraph 4 of her affidavit the wife also states that the Bank of Queensland has failed to answer her subpoena for production of documentation relating to the $71,000.00 loan taken out against the mortgage on the matrimonial home in 1993.  The wife states that she has approached the Banking Ombudsman, who advised her that “as the matter is before the Family Court he is not willing to approach the Bank and advised it is now the role of the Court to demand that this material is released”. The wife asserts that the “information requested from the Bank is paramount in the outcome of the case and also important due to the fact I have no recollection of extending our mortgage by $71,000.00 in 1993 and as this account was in both our names I have a right to view any applications for advances made towards the mortgage”.

1. The husband correctly states in his affidavit filed 29 July 2009 that the $71,000.00 was the subject of evidence at the hearing and he was cross-examined about it.

2. Senior Counsel for the husband submitted that the issuing of further subpoenas may necessitate the calling of further witnesses and the consequent delaying of the judgment; that the wife is merely on a fishing expedition; and that in any event the issues sought to be agitated by the wife are immaterial to the issues to be determined.  I accept those submissions.

3. Any possibility that the wife would be able to obtain material substantiating her alleged lack of knowledge about the $71,000.00 loan in 1993 is, in my view, outweighed by the delay involved in obtaining subpoenaed material and potentially calling additional witnesses.  Similarly, significant prejudice would be occasioned to the husband in having to obtain copies of the subpoenaed material, evaluate it and prepare a response.  I am not of the view that that prejudice could be rectified by something like a costs order.

Emmetts Snr subpoena

1. The wife states at paragraph 5 of her affidavit that the husband’s parents are property developers in Queensland and own 9 rental properties which the husband stands to inherit.  She states that material in relation to this issue should be admitted.

2. The husband states in his affidavit filed 29 July 2009 that he is unaware of the details of the properties owned by his parents.  He states that they are both in their early seventies and in good health.

3. Senior Counsel for the husband submitted that the subpoena was filed on 9 July 2008 and the evidence was available during the hearing.  She submitted that the subpoenaed documents were not called for formally or, if called for informally, were not put to the husband.  She also submitted that the wife’s application in this respect is based upon an attempt to raise a new issue, specifically the husband’s expectancies, and that the question of the effect of the evidence on the result of the case is speculative.

4. Evidence about this topic (and I have no indication about exactly what the evidence is) cannot be brought within any of the relevant categories which would attract leave.  I note firstly that the wife could have sought to raise this evidence or put it to the husband during the hearing.  That she did not do so, but now seeks to adduce the evidence by means of the current application, is an attempt by her to escape being bound by the conduct of her case during the trial. 

5. This evidence could not be relevant to the wife’s application pursuant to s 79A(1)(a) Family Law Act 1975 (Cth). It also could not impact upon the finding that I have made in relation to “exceptional circumstances” as they relate to the wife’s application pursuant to s 79A(1)(d) Family Law Act 1975 (Cth).

6. I note also the prejudice that would be occasioned to the husband by virtue of having to re-open his case and address an additional issue about which he was not cross-examined during the hearing.  That prejudice could not be rectified by something like a costs order.  It would also necessitate further delay and postpone, without sufficient justification, the delivery of judgment in the substantive matter, to which both parties are entitled without being forced to respond to post-hearing applications.  

Jupiters Casino

1. The wife states at paragraph 6 of her affidavit that she did not tender a Jupiters card that she had in her possession at the hearing because she was unsure if it was hers.  During the hearing of the current application, the wife submitted that she has since been able to ascertain that the card was not hers and was active up until October 2002.

2. The husband states in his affidavit filed 29 July 2009 that he is unaware if he ever had a Jupiters card.  He states that the wife operated a card in his name so as to increase the reward points that she was able to obtain as a result of gambling. The husband also suggests that the photocopy of the card at Annexure H of the wife’s affidavit differs from the card that the wife showed him at the hearing.

3. Senior Counsel for the husband objects to the adducing of this further evidence due to the fact that it could be been considered by the wife at an earlier time.  She submits that issues relating to Jupiters Casino, gambling and the use of rewards cards have been dealt with in affidavits dating back to the commencement of the main proceedings in 2001.  I accept those submissions.

4. I note the wife concedes in her affidavit that during the trial she was given an opportunity to tender the card which she now wishes to tender and to give any oral evidence that she wished to give to explain its origins.  She, at that time, took the tactical decision not to avail herself of that opportunity. 

5. I am not of the view that this piece of evidence can be brought within any of the relevant categories.  I note, first and foremost, its immateriality.  The subject of the wife’s gambling has been central to this matter since it came before me.  The possibility that an additional Jupiter’s card in the husband’s name was floating around during the parties’ relationship is neither here nor there; and even if the evidence was permitted to be adduced and was accepted as true, then I would be strongly inclined to accept the husband’s explanation that it was created by the wife as a means of maximising her reward points via the operation of an additional card.  Allowing the wife to adduce this piece of evidence (which could have been discovered prior to the hearing) would result in unnecessary delay and would prejudice the husband by virtue of his having to re-open his case and respond to an issue that has already been exhaustively covered in evidence.  That prejudice could not be rectified by something like a costs order.

The inheritance

1. The wife seeks once again to re-tender a list of items which she sought to tender during the hearing.  The list of items relates to monies which the wife says she paid from her inheritance.  The wife had attempted during the trial to tender the list in the form which she now seeks again to tender. 

2. Senior Counsel for the husband submitted that the wife should not be granted leave to adduce the list because I upheld an objection to its tender at trial, and that the wife’s remedies lie elsewhere.

3. I agree with that submission. 

Money given to the husband

1. Annexure J to the wife’s affidavit is a letter to her from the husband that she alleges demonstrates that she paid for household items.  The letter is undated.  She states that “this letter was not available at the time of the trial”.  She told me during the hearing of the current application that she found the letter “stuck in a book”.  The wife also uses this letter to corroborate her assertion that she regularly made payments into the parties’ joint account.  In his reply, the husband states that the letter must be at least 11 years old, as he had stopped calling the wife “Snookie” by 1998.  Senior Counsel for the husband submitted that Annexure J will not affect the result of the case and I accept that is so. 

2. The wife annexes to her affidavit (Annexure K) a copy of some Bank of Queensland statements from the parties’ joint account.  She wishes to tender these statements and give evidence that of the many cash transactions deposited into the account were monies that she had won at the casino.  The wife makes the inadmissible submission that deposits are made into the account shortly after she has played at the casino.  By inference the wife seems to be implying she would like to lead further evidence or make future submissions to establish this proposition.

3. The husband states that any monies deposited into the joint account by the wife were at his insistence following arguments about missing money.

4. Annexure K was available to tender in the main proceedings.  The husband was cross-examined about cash deposits into the joint account but no documents were put to him.  The pagination of the documents contained in Annexure K is incomplete and no explanation is given for the substantial gaps in the sequence of the pages.

5. I am not of the view that this evidence falls within any of the relevant categories.  That the wife may have made payments to the husband or into the parties’ joint account at some stage as evidenced by the letter, or at times referable to wins at the casino, is immaterial and if believed could not affect the outcome of the case.  The wife neglected to cross-examine the husband about the documents contained at Annexure K.  I am not of the view that there are sufficient grounds to enable the wife to do so now.  I note also the delay that would stem from granting the wife’s application in respect of this piece of evidence, and the prejudice that would be occasioned to the husband by virtue of having to re-open his case and respond to matters that should have been put to him in cross-examination. That prejudice could not be rectified by something like a costs order.  

Bank of Queensland Mortgage Account

1. At paragraph 9 of her affidavit the wife states that she has obtained records showing that the $71,000.00 added to the parties’ mortgage was used by the husband to pay household expenses.  It seems she then subsequently will wish to make a submission that there is a lack of accounting by the husband of where his wages went during the cohabitation.  The wife’s explanation for not tendering these records at the hearing is as follows: “I had not attached this material before because I simply thought that I could tender them at the trial when relevant and was unaware that it needed to be part of an affidavit.  I am still confused by Mrs Pack’s ability to tender whatever material she liked without attaching to an affidavit or showing me prior to the trial”.  During the hearing of the current application, the wife stated to me that she had tried to tender the statements in Court.  In that event the wife is bound by my earlier ruling.

2. I note that the issue of where the $71,000.00 went was raised by the wife during the hearing before me.  It was the husband’s position that his wages went to mortgage repayments and household expenses.  To allow the wife to adduce further evidence about this issue at this stage would be to create unjustifiable delay and place the husband in the position of having to further respond to matters in respect of which he has already been cross-examined at length. 

The husband’s expenditure at Jupiters

1. At paragraph 10 of her affidavit the wife states that Annexure M to her affidavit shows that the husband spent money at Jupiters.  She states that “I tried to tender this material in Court and was disallowed due to the fact that it did not appear in my evidence”.

2. The father agrees that he spent money at Jupiters on occasion, including on birthdays.

3. Senior Counsel for the husband submitted that the wife should not be permitted to re-argue a failed attempt to tender the documents contained in Annexure M.  I agree with that submission.

4. I note also that the evidence does not fall within any of the relevant categories.  The possibility that the husband spent money at Jupiters on occasion, with none of the compulsiveness or abandon with which the wife herself did so, is immaterial and if believed would not affect the result of the hearing.  If the evidence was adduced and the husband was cross-examined I would be inclined to accept his quite uncontroversial acknowledgment that he spent money at the casino from time to time, including on birthdays.  To allow the wife to adduce this evidence would cause prejudice to the husband by virtue of subjecting him to cross-examination on a very minor issue (such prejudice not being able to be rectified by something like a costs order) and would necessitate further delays in the delivery of final judgment and the conclusion of this matter.

Affidavit of Mr F

1. During the substantive hearing, an issue arose as to whether or not the wife had accurately reported at paragraph 12 of her affidavit sworn on 3 March 2009 that “Mr [F’s] wife, Mrs [F], had arrived, obviously to collect Mr [F] and also sat in the courtroom” when the consent orders were being made.  Mr F gave compelling evidence that his wife was not in the courtroom and that the wife’s recollection about that was inaccurate.

2. I allowed Mrs F to give oral evidence and I limited the use of the evidence from Mrs F as evidence that would stop the wife making a Jones v Dunkel[4] submission against the husband.

   [4] [1959] HCA 8; (1959) 101 CLR 298.

3. The wife now wishes to re-open her case in order to explore the veracity of Mrs F’s evidence.

4. The wife wishes to issue a subpoena to the Family Court Registry (I am unsure to whom or for what purpose but presumably Mrs F’s evidence that she, as an employee of the Court, was in Cairns on the day she said she was) and to call evidence from Mrs G, a Catholic bishop and two Catholic nuns.

5. In relation to re-calling Mrs G, the wife could have made that application during the substantive hearing. There is no indication as to what Mrs G’s evidence might have been about whether or not she saw Mrs F in the courtroom. The issue of whether or not Mrs F was there was a live issue from the very commencement of the trial and there was no reason why the wife, should she have chosen, could not have sought to have adduced that evidence from Mrs G when she gave that evidence. As will be clear from my substantive judgment, the determination of this issue has been based on an assessment of the evidence of the wife on the one hand and on the evidence of Mr F on the other. The question of whether or not Mrs F was there was of very peripheral relevance. Had an application been made during the trial for this evidence to be led in the wife’s case I would have excluded it pursuant to the provisions of s 135(c) Evidence Act 1995 (Cth).

6. It follows that none of this evidence comes within any of the categories that would enable the wife to obtain leave to adduce it now.

Legal Services Commission

1. At paragraph 12 of her affidavit the wife states that she has been advised since the finalisation of the trial “in a conversation with Ms [Z] that Mr [U] has not written a response to my complaint.  This, for [sic] memory is completely different information than that given by Ms [C] in cross-examination when she advised the Court that she had contacted Mr [U] regarding his response to my complaint”.

2. The husband states in his affidavit filed 29 July 2009 that he is unable to comment on this issue, save for the fact that “I was informed by my lawyer many years ago that he and most other lawyers involved in the 2001 Court proceedings had had complaints made against them by [the wife]”.

3. Senior Counsel for the husband objects to this evidence on the ground of hearsay and that objection is well founded.

4. I am not prepared to permit the wife to adduce this evidence.  It has only peripheral relevance to the issues that I have to determine, and if believed would not affect the result of the trial.  Like the other evidence that the wife seeks to adduce, it would also cause significant delay for little or no benefit and would cause prejudice to the husband, such prejudice not being able to be rectified by something like a costs order.

Missing Assets and Liabilities Statement

1. The document in question is the original of a document, created by Mr F, the wife’s counsel, during property negotiations on 11 September 2001.

2. The photocopy of the first page of this document is in evidence (Exhibit RR).  During the hearing the original was said to be lost.  I suspect it was not.  The original of the document is in fact Exhibit TT.

3. At paragraph 13 of her affidavit the wife refers to “the missing Assets and Liabilities Statement”, which she asserts “is so material that the interest of justice requires that it be found and admitted”.  The wife states that “this piece of evidence in the form that it was when I was cross-examined by Mrs Pack and shown this piece of paper is relevant and important information to the outcome of these proceedings and in particular the outcome from the Legal Services Commission”.  

4. During the hearing of the current application, the wife stated that “regarding the missing assets and liability statement…… I believe that this piece of evidence is crucial because it actually shows discrepancies from the original that was in my possession which actually belonged to Mr [F]”.

5. There is nothing in Exhibits RR or TT which would be consistent with the description given to it by the wife.  There are no discrepancies between Exhibit RR and Exhibit TT.  Exhibit RR is a faithful photocopy of Exhibit TT.  The confusion has arisen because the parties overlooked in tendering of Exhibit TT. 

6. If, in fact, some other document has been referred to by the wife then the father states in his affidavit filed 29 July 2009 that he does not have it.

7. In submissions in this application before me senior counsel for the husband assumed that the original of the document had been lost and in those circumstances submitted that the wife should not be permitted to re-open her case on the basis that an original document was misplaced.  She also submits that the original document rule has been abolished.  Those submissions are only relevant in the event that the wife was referring to a document other than the exhibits I have referred to above.

8. In the event that there is some third document to which the wife refers, she has not given evidence about what she remembers were the discrepancies so that I can make some assessments as to the relevance or materiality of those alleged discrepancies.  In any event, if there is a missing document, nobody knows where it is and consequently there can be no basis for re-opening the hearing in order to tender it.

Sale of the matrimonial home

1. The wife wishes to subpoena a conveyancing file from Mr V in relation to the sale of the former matrimonial home.  Senior Counsel for the husband submits that the applicant should not be permitted to re-open for the purposes of issuing a further subpoena.  The wife during the long period during which she had to prepare this case could have, if she so chose, issued a subpoena to Mr V for the purposes of obtaining whatever material he might have had relevant to the sale of the matrimonial home.

2. I am not of the view that the wife should be allowed to issue a further subpoena to attempt to see if she can obtain any further information which she might subsequently wish to tender in evidence. 

Domestic violence – Kennon case

1. At paragraph 15 of her affidavit the wife refers to “the Kennon case” and asks the Court to take into account her ignorance of this case as a litigant in person.  The wife states that had she been informed of the case she would have referred to it in her affidavit material.  She states further that “I believe the Court acted to [sic] quickly to call out the Kennon case in this matter resulting in a grave injustice to the physical, emotional and psychological abuse suffered by myself and my children”.  The wife goes on to assert serious economic abuse of her by the husband during the marriage, which “was achieved by Mr [Emmett’s] coercion of me to cease work and stay at home with his children and give up my career and give him my package”.  The wife states that she began gambling as a means of increasing her income and that she did so with the knowledge, support and encouragement of the husband. 

2. In his affidavit filed 29 July 2009 the husband denies that he subjected the wife or the children to physical or economic abuse during the marriage.  He also denies that he either supported or encouraged the wife to gamble, and states that she was not a successful gambler and took money from joint accounts and credit cards to pay for gambling.

3. Senior Counsel for the husband submits that the wife should not be permitted to re-open her case in order to re-argue a point that has already been determined at trial.

4. I accept that submission.

1. In addition the evidence that the wife seeks to lead in her affidavit of 13 July 2009 is insufficient to properly ground any “Kennon style” claim.  Further, that evidence from the wife would have to be weighed against evidence that I have heard in the case about the history of the marriage; the husband’s denial of physical and economic abuse and the credit findings I will otherwise make in the substantive proceedings.

2. As to the wife’s evidence that she turned to successful gambling as a way to alleviate economic abuse I, on the totality of the evidence, reject that claim.  The wife’s gambling was not a profit making enterprise.

Sale of the matrimonial home 

1. At paragraph 14 of her affidavit the wife states that she received $43,000.00 from the sale of the former matrimonial home, not $93,000.00 as advised by Mrs Pack.  The wife states that the break up of funds can clearly be seen on Mr V’s file, which she believes should be subpoenaed for that purpose.  The wife also annexes to her affidavit (Annexure N) “copies of the Real Estate’s rapid reduction in the sale price from $320,000.00 to $210,000.00.  This was due to the pressure from Mr [the husband’s lawyer] and [the husband] to get the property sold even though Mr [RO] insisted on the orders needing to be changed”.  The wife asserts that “at the court on the final day I had no knowledge that I was to produce the previous figures from the sale of the family home”.  She states further that she could not produce evidence in relation to this “as I was simply unaware that it was going to be brought up by Mrs Pack at the last minute of the trial”.

2. In his affidavit filed 29 July 2009 the husband states that according to his recollection, the wife received $93,822.29 from the sale of the former matrimonial home.

3. Senior Counsel for the husband submits that the evidence sought to be adduced by the wife on this issue is hearsay evidence from a real estate agent that is both immaterial and inadmissible.

4. In my view this piece of evidence does not fall within any of the relevant categories.  Firstly, as submitted by senior counsel for the husband, the evidence does not come from the wife herself but from the file of the agent.  I am not prepared to permit the wife to adduce further evidence solely on the basis of her assertion as to its materiality.  To do so would involve the issuing of further subpoenas and a consequent delay in the resolution of this matter.  It would also cause prejudice to the husband that could not be rectified by something like a costs order.

Errors in court

1. At paragraph 16 of her affidavit the wife states that during the hearing, “[the husband’s lawyer] advised the Court that there are photos on the Jupiters Rewards Cards.  This is incorrect for the time in question in this matter.  Photos have only been required since late 2008 if you chose to oblige”.

2. The husband replies that his lawyer “did not give evidence at the trial.  I have no knowledge of when photographs have or have not been required on Jupiters rewards cards”.

3. The wife also states that the husband “seriously lied on a number of occasions under cross-examination,” but that as a litigant in person she did not know how to challenge those lies.

4. The husband denies having lied in Court.

5. Senior Counsel for the husband submits that it is unclear from the wife’s affidavit exactly what evidence she wants to lead on this issue.

6. That is a submission with which I agree.  Rather than seeking to adduce specific items of evidence, the wife, under the heading of “errors in court”, is grouping a series of submissions and assertions that have no relevance to the relevant categories.  However, I note in passing that the issue of when photos were placed on the Jupiters cards has nominal relevance.  In addition, I find it hard to accept the wife’s assertion that as a litigant in person she did not know how to challenge the husband’s alleged lies, given the vigour and confidence with which she cross-examined the husband and pointed out what she regarded as inconsistencies in his case.

Missing property

1. At paragraph 17 of her affidavit the wife refers to a robbery that took place at the former matrimonial home on 16 August 2000 and states that she has made a FOI request to Townville Police in relation to that incident.  She asserts that she has not yet received a reply.

2. In response the husband states that the robbery was referred to during the trial.  He states that his coin collection, comprised of coins that are not legal tender in Australia, was stolen but was later found in an adjoining suburb.  He states that other items, including coins that are legal tender in Australia as well as the wife’s jewellery, were not recovered.

3. Senior Counsel for the husband again submits that it is unclear from the wife’s affidavit exactly what evidence she wants to lead on this issue.

4. As senior counsel for the husband submits, the wife’s intentions on this topic are unclear.  If she is asserting that the value of items stolen during the robbery is somehow relevant to the property settlement between the parties, then she had every opportunity to pursue that Freedom of Information request prior to the hearing.  That aside, I am of the view that the issue itself is not of sufficient materiality to warrant allowing the wife to adduce further evidence.  Any impact that it may have on the hearing is in my view outweighed by the delay involved and the prejudice that would be occasioned to the husband as a result.

Receipts of items paid for in the marriage

1. At paragraph 18 of her affidavit the wife states that she has “a large bundle of receipts which provide for the Court evidence of my contribution to the marriage and in particular to the full renovation of the family home.  This bundle of receipts is far too large to attach to any affidavit.  As a Litigant in Person I have no idea of how to get that material before the Court and when I tried to tender it in Court was refused”.  During the hearing of the current application, the wife identified these receipts as “proof of the full renovation of the family home that I basically paid cash for”.  The wife submitted that she “tried to tender those documents as proof of my contribution to purchase and restoration of this home and was disallowed, and they were certainly too large to attach to this affidavit”.

2. The husband states that he has not seen the receipts and is unaware of what the wife is referring to.

3. Senior Counsel for the husband again submits that the wife should not be permitted to re-open her case in order to re-argue a point that has already been determined at trial.

4. In my view this evidence does not fall within any of the relevant categories.  The wife is basically seeking to re-argue a point that was dealt with at trial and adduce a quantity of new material that should properly have been tendered at the hearing as part of the wife’s evidence in chief in a manner which would allow the husband to respond to it.  The wife did not put this material to the husband during cross-examination.  In those circumstances I am not of the view that the evidence is so material that the interest of justice requires that it be admitted, nor do I think that if believed the evidence would affect the result of the hearing.  I am of the view that the dominant characteristic of this evidence is the delay and prejudice (to the husband) that would flow from permitting the wife to adduce it. 

The husband’s financial statements

1. During the hearing of the current application the wife made an additional complaint in relation to the husband’s failure to provide bank statements as well as documentation in relation to the loans he obtained from his parents.  She also notes the lack of tax returns on the part of the husband, and complains that she is consequently unable to ascertain whether any payments have been made from the husband’s superannuation.  The wife asserted that this information needed to be put before the court in order to ensure a fair trial.  It was unclear to me, as to whether the wife wanted to re-open the case to make submissions about lack of financial disclosure by the husband or to re-visit pre-trial discovery to gather information for a possible re-opening of the case.

2. In my view this aspect of the wife’s application cannot succeed on the relevant bases.  All these issues that were referred to during the hearing.  When delivering Reasons for Judgment in the substantive matter I will deal with the wife’s case at trial as it relates to allegations of suppression of evidence and non-disclosure by the husband.  To allow the wife to re-embark on a process of discovery of documents and re-litigate the issues at this late stage would be to cause undue delay and prejudice to the husband in a way that could not be rectified by something like a costs order.

CONCLUSION

1. Much of the additional evidence referred to above has the flavour of an attempt by the wife to press her view of an equitable property settlement and re-agitate matters that were the subject of evidence and argument in the main proceedings.  The portions of the wife’s affidavit relating to superannuation, gambling and domestic violence are examples of this.  These are topics that have been open for argument since the early stages of the proceedings, and nothing that the wife is now seeking to raise can have any bearing on those issues.  Most of the material upon which she seeks to rely was available previously or was the subject of a rejected tender at the main proceedings. 

2. I have allowed the wife to tender correspondence with the trustee of the husband’s superannuation fund for reasons earlier stated.  Apart from that, however, the wife has not provided any evidence that would satisfy me that I should accede to her application to re-open her case and I dismiss her application to do so.

FURTHER CORRESPONDENCE TO CHAMBERS

1. The wife sent a letter addressed to me dated 25 October 2009.  I have not read the letter.  The wife is an intelligent woman and understands very well the requirements in the event that she wishes to make any application to the Court.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  21 January 2010