Hendrick & Colton
[2022] FedCFamC1F 414
Federal Circuit and Family Court of Australia
(DIVISION 1)
Hendrick & Colton [2022] FedCFamC1F 414
File number(s): SYC 6269 of 2018 Judgment of: CAMPTON J Date of judgment: 6 June 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant makes an oral application on the first day of the trial to rely on a further affidavit filed that morning – Where the affidavit annexes some 800 pages of exhibits and includes calculations undertaken by the applicant relying on documents contained in the exhibits – Where the late provision of the material occasions substantial unfairness and prejudice to the respondent – Application refused. Legislation: Family Law Act 1975 (Cth) ss 44, 90SM
Evidence Act 1995 (Cth) ss 50, 136
Cases cited: R v Watson; ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39 Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 6 June 2022 Place: Sydney Counsel for the Applicant: Mr Elachkar Solicitor for the Applicant: Goldman & Co Lawyers Counsel for the Respondent: Ms Spain Solicitor for the Respondent: O’Sullivan Legal ORDERS
SYC 6269 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HENDRICK
Applicant
AND: MR COLTON
Respondent
order made by:
CAMPTON J
DATE OF ORDER:
6 June 2022
THE COURT ORDERS THAT:
1.The application for leave of the applicant to rely on her affidavit filed on 6 June 2022 is refused.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hendrick & Colton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Introduction
These are substantive proceedings as to property adjustment pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) subsequent to the termination of a de facto relationship between the parties that commenced on the applicant’s case on 6 June 2010 or on the respondent’s case on 22 May 2011, and continued until February 2016. The applicant is Ms Hendrick (“the applicant”) and the respondent is Mr Colton (“the respondent”).
The applicant’s Initiating Application was filed on 1 October 2018 and hence leave is required to progress the s 90SM claim pursuant to s 44(6) of the Act. I am yet to hear submissions in relation to any such oral application, if made.
The proceedings were listed for trial before me subsequent to directions made by Alstergren CJ on 7 December 2021. Those directions included a progressive timetable for the applicant to file her material 21 days prior to the trial, the respondent to file his material 14 days prior to the trial, and for the applicant to file material in reply 7 days prior to the trial. Outside the trial directions the applicant has filed and served this morning an affidavit comprising some 15 paragraphs and exhibiting, I am told, some 800 pages.
The applicant obtained leave to make an oral application to rely on that affidavit for the purposes of the trial. The application for leave is opposed by the respondent.
The applicant submits in support of the application for leave that the documents identified by way of the exhibits to the affidavit have been the subject of disclosure and they do not take the respondent by surprise. The applicant contends she will be significantly prejudiced in the prosecution of her case in the event she is not permitted to rely on the affidavit.
In opposing leave, the respondent identifies the large number of exhibits to the affidavit and the previous timetable for the filing of affidavits as identified earlier in these reasons. Implicitly the respondent contends that there is no explanation for the applicant’s failure to put the evidence contained within the affidavit filed today in the contents of her prior two affidavits that she can rely upon for the purposes of the trial, and also implicitly identifies prejudice by way of the summary identified within the affidavits as to the applicant’s “calculations” of the quantification of funds she has paid during the period of cohabitation arising from the documents that have been exhibited to the affidavit.
I have made a ruling in the proceedings pursuant to s 136 of the Evidence Act 1995 (Cth) (“the Evidence Act”) that I will not consider for the purposes of the reasons for judgment documents exhibited to affidavits unless they are identified in cross-examination or in submissions.
It seems to me that the respondent contends that the calculations undertaken by the applicant identified in paragraphs 10, 11 and 13 of the affidavit create prejudice to him. Counsel for the respondent correctly identifies that what the applicant seeks to achieve by way of this specific evidence is some form of tracing exercise that is contended to be relevant for the purposes of the proceedings.
These proceedings have been on foot for a very lengthy period of time as identified earlier in these reasons. The High Court on a number of occasions has said that this Court is a superior court of record. It is obliged to afford fairness to all parties, both procedurally and substantially, and not to act in a manner which can be described as dispensing “palm tree justice” (see R v Watson; ex parte Armstrong (1976) 136 CLR 248). So that it is clear, all litigants before this Court are entitled to receive a fair and appropriate notice of the evidence to be agitated. That fairness extends to both the applicant and the respondent.
I am not told, why in the circumstances, what appeared to be schedules pursuant to s 50 of the Evidence Act were not prepared and served within the six months of the matter being listed for trial. The applicant had significant opportunity within that period to reduce the material and rely upon such a simple schedule for the purpose of the trial.
In the circumstances I am also mindful that it is open to the applicant, subject to the earlier ruling, to tender the parts of the exhibits that she considers are probative and relevant for the purposes of the trial during the course of cross-examination.
To my mind the calculations undertaken by the applicant relying on documents contained within the exhibits presents a substantial unfairness and prejudice to the respondent and ought to have been attended to in the preparation of the matter for trial or by way of the affidavit relied upon pursuant to the filing timetable identified earlier in these reasons, and not left to the morning of the trial to in effect provide material by way surprise with conclusions to be attached to it.
In the circumstances, for all of the above reasons, the application for leave of the applicant to rely on the affidavit filed this morning, 6 June 2022, is refused.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 7 June 2022
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