Fowles and Fowles

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…