Fowles and Fowles

[2019] FamCA 133

FAMILY COURT OF AUSTRALIA

FOWLES & FOWLES [2019] FamCA 133

EVIDENCE –Ruling on use to which document can be put – tending document referred to in cross-examination not compulsory.

Evidence Act 1995 (Cth)

APPLICANT: MS FOWLES

RESPONDENT: MR FOWLES

INDEPENDENT CHILDREN’S LAWYER: Ms M Lonergan

FILE NUMBER: MLC 8587 of 2015

DATE DELIVERED: 5 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 5 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D.P. Sheales

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr T. North SC

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED THAT

1. The husband have leave to rely on the affidavit of Mr Y sworn 30 January 2019 and the husband have permission to make Mr Y available by audio visual link for the purpose of cross-examination on behalf of the wife.

2. My reasons in relation to the evidence of Mr Z and in relation to the evidence of Mr Y be transcribed and when settled placed on the Court file and a copy provided to the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 8587 of 2015

MS FOWLES

Applicant

And

MR FOWLES

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On the fifteenth day of this trial, an issue arises in cross-examination about the use to which a document which has been tendered in evidence can be put.  These financial proceedings largely concern the wife’s attempt to locate valuable assets outside the jurisdiction in the context of a final alteration of property interests and spousal maintenance and child support.  In the course of preparing the husband’s case, the husband’s practitioners obtained an affidavit from a Mr Z who is a lawyer in Country FF.  That evidence was both narrative and expert in nature.  The affidavit was provided to the lawyers for the wife.  However, it was not filed with the Court, nor ultimately a document upon which the husband placed reliance. 

2. Mr North SC announced that reliance would not be placed on Mr Z’s affidavit apparently as a consequence of, the wife having said that she would require Mr Z for cross-examination.  Mr North’s instructions were that Mr Z would not or could not be made available for cross-examination.

3. The husband then proceeded to obtain other expert evidence, namely, Ms BB, a legal practitioner in Country FF.  She can be made available for cross-examination, although by audio-visual means. 

4. In cross-examination yesterday counsel for the wife took the husband to Mr Z’s affidavit.  It is common ground that he “cross-examined on the document” in that Mr Sheales took the husband to various parts of the document, asked him to comment on the contents of it, and then put to the husband the proposition (in my words) that the husband had declined to rely on the evidence of Mr Z because, if Mr Z was subjected to cross-examination, Mr Z could be asked about much more of the husband’s business than the husband was prepared for this Court to learn.  It was as such a cross-examination as to credit. 

5. Whilst the husband was still being cross-examined, counsel for the husband required counsel for the wife to tender Mr Z’s affidavit.  Counsel for the wife stated that he had no difficulty with tendering the document.  The document was tendered.  It is in evidence.  It is exhibit “W80” on the Court file.

6. The crux of the problem is that counsel for the wife has belatedly said that he was not prepared that the tender operate so as to provide evidence of the truth of the contents of the document.  Counsel for the husband maintains that, once the document is in evidence, it is in evidence for all purposes. 

7. We adjourned for the evening and today counsel have made submissions about the use to which the tendered evidence can be put and how such use may be restricted. 

8. Having looked at sections 44 and 45 of the Evidence Act 1995 (Cth) (“the Evidence Act”), it is apparent that the cross-examination by Mr Sheales of the husband on this particular document was contrary to and in breach of the provisions of section 44. Section 44 provides that a cross-examiner must not question a witness about a previous representation alleged to be made by a person other than the witness unless the evidence has been admitted or is going to be admitted.

9. Section 45(3) provides that the questioning will be limited to asking the person under cross-examination whether, having regard to the contents of the document, the witness stands by his evidence. The cross-examination did not follow that course and in hindsight it appears to me to have been improper. But then we turn to the use to which the document as tendered can be put.

10. Section 45 of the Evidence Act provides where a party is cross-examining or has cross-examined a witness about a previous representation alleged to have been made by another person that is recorded in a document, the court may examine a document or evidence that has been so produced and give directions as to its use and admitted even if it has not been tendered by a party.

11. I heard submissions on the Court’s power to limit the use to which the tendered evidence can be put in the proceeding.

12. Mr North has persuaded me that section 45(3)(b) of the Evidence Act relates to the Court’s power to give directions as to the use to which a document could be put in cross-examination. It does not make provision for the use to which a document can be put in proceedings.

13. Mr North’s submission is that, if the use to which the evidence can be put is to be limited, the source of power is appropriately section 136(a) of the Evidence Act which provides inter alia that the Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party.

14. Mr Sheales submitted that the use to which the evidence can be put is merely the fact that it was prepared and is in existence.  His submission, if I understand it correctly, is that the use to which the document can be put is to be curtailed or limited by the purpose for which the cross-examination was undertaken. In Mr Sheales’ submission, the document is “un-cross-examined expert evidence” which the Court should not be compelled to accept, hence the use of it should be limited.  I do not see that there is any authority to support that contention.  It is a vulnerable proposition for various reasons including that it relies on the objective intention of the cross-examiner.

15. Mr North makes the cogent submission that, in effect, the wife and the wife’s case cannot escape the consequences of counsel having cross-examined in a certain way and the document having been put by him into evidence.  There is considerable merit in that contention.  Against it, however, I should weigh the extent which the “use of the evidence thus would be unfairly prejudicial to a party.”  I consider this to be an exercise in which I have some regard to unfairness as a relative concept as between the parties.

16. I find that it would be significantly unfair to the wife to lumber her with the consequence of Mr Z’s evidence being put in as part of her case when it was not relied upon because the witness could not be tested in cross-examination. 

17. In looking at prejudice and unfairness within the meaning of s 136 of the Evidence Act, I take into account the impact on the husband of not permitting the affidavit of Mr Z to be used to prove the truth of what it says. I find there is no prejudice to the husband whatsoever. He took advice early in the proceedings. He relies on the evidence of another deponent, that is, Ms BB, and will be calling Ms BB. The only prejudice I can see that the husband may suffer is that he does not have the benefit of the ‘own goal’ kicked by Mr Sheales in yesterday’s appearance. There was only a short time between the tender and this argument. The husband did not act to his detriment. The husband suffers nothing unfair or ‘prejudicial’ within the meaning of s 136 of the Evidence Act in the event that I do not permit the tendered document to stand as evidence of the facts stated. On the other hand, the wife will suffer prejudice which, quite frankly, is unfairness and prejudice which I assume her counsel did not foresee at the time of the tender but which I assess as unfairly prejudicial.

18. My ruling is to limit the use of the affidavit of Mr Z so that it does not in itself constitute evidence of the truth of what is deposed to in the affidavit. 

RECORDED  :  NOT TRANSCRIBED

1. An issue arises about the admission of the affidavit of Mr Y, a Managing Director of a single-family office which controls and manages a number of trusts, which is a document sought to be filed by the husband and relied upon in his case.  This affidavit deals with the DD Trust and EE Trust which are subjects of dispute in the substantive proceedings.

2. The husband has been cross-examined yesterday.  When we recommenced these proceedings, I was addressed in part on the admissibility of Mr Y’s affidavit.  My recollection is that counsel for the wife said that he reserved his client’s entitlement to object to the filing and reliance upon the affidavit, but he would be pursuing production of certain documents by Mr Y, after which the objection may be withdrawn.  So as matters stand, Mr Y’s affidavit is a document which is filed with the Court but in respect of which I have not yet given the husband entitlement to rely upon.

3. The husband was cross-examined by counsel for the wife on the contents of Mr Y’s affidavit. Mr North for the husband now seeks that the affidavit be tendered. Whilst acknowledging that prior to the enactment of the Evidence Act that tender would have been mandatory, he now concedes that it is not.  However, if the document were to be tendered, that would at least put it into evidence, and the then most relevant course would be to examine how Mr Y can be made available for cross-examination. If he can’t be available, what weight is to be given to his evidence? If he can be made available by audio-visual link, do we just proceed with the cross-examination?

4. In short, Mr North’s proposal is to remove one further hurdle to the husband’s reliance upon the evidence of Mr Y.  Counsel for the wife says that he does not wish to tender the document.  In the circumstances, I’m not going to require him to tender the document, which leaves us in the situation that the husband has given the other side notice of his intention to seek to rely on the affidavit, which the wife opposes. 

ORDERS DELIVERED

1. The husband have leave to rely on the affidavit of Mr Y sworn 30 January 2019 and the husband have permission to make Mr Y available by audio‑visual link for the purpose of cross-examination on behalf of the wife.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 February 2019.

Legal Associate: 

Date:  13/03/2019