Holt and Edmondson
[2016] FCCA 2238
•31 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOLT & EDMONDSON | [2016] FCCA 2238 |
| Catchwords: FAMILY LAW – Practice and procedure – evidence – cross examination. |
| Legislation: Family Law Act 1975, s.79 |
| Cases cited: The Marriage of Kennon (1997) 22 FamLR 1 R v Chin (1985) 157 CLR 671 R V Kane (1977) 65 Cr App R 270 |
| Applicant: | MS HOLT |
| Respondent: | MR EDMONDSON |
| File Number: | PAC 3490 of 2015 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 23 August 2016 |
| Date of Last Submission: | 23 August 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 31 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hazelwood |
| Solicitors for the Applicant: | Penhall & Co Lawyers |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | John Spence & Associates |
ORDERS
The Respondent’s oral application made on 23 August 2016 to restrict the cross examination of the husband such that questions pertaining to a possible Kennon argument not be permitted, is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Holt & Edmondson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3490 of 2015
| MS HOLT |
Applicant
And
| MR EDMONDSON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a Judgment dealing with a discrete issue of the permissibility of cross-examination on a matter about which there is no evidence in chief and about which evidence in chief was not pressed for reasons which are explained below.
At the commencement of hearing of this matter, the Court dealt with objections to Affidavits which had been filed by each of the parties.
The trial directions made on 13 May, 2016 provided, inter alia, as follows:
a)The case is listed for a two day Final Hearing at 10am on 22 and 23 August 2013.
b)Both parties are to file and serve a single, consolidated trial Affidavit relevant to their case by 6 July 2016; and
c)No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
The wife filed her trial Affidavit on 6 August 2016.
The husband filed his trial Affidavit on 22 July 2016.
Both parties were in breach of the Court directions, however, neither party claimed there was any prejudice to them as a result of the late filing of the trial Affidavits.
The objections taken by each of the husband and wife resulted in parts of the parties’ trial Affidavits either not being read or being struck out.
The wife had also filed a further and supplementary Affidavit on 11 August 2016, which was served on the same day. It was a fairly short Affidavit. The husband objected to this supplementary and late Affidavit filed by the wife in its entirety.
The Affidavit contained assertions by the wife that the husband’s brother had acted inappropriately towards her, such as rubbing up against her, touching her on the thighs, slapping her bottom, once thrusting his hand between her legs from the rear and otherwise acting in a manner which was disrespectful and harassing. The wife also asserted that the husband had not protected her from his brother’s conduct.
There was no explanation, except as contained in that Affidavit, as to why the Affidavit was filed late. The Affidavit contained the following paragraph:
2. I have struggled with the need to make this further affidavit and I seek the leave of the Court to have it read in the proceedings. I am advised by my solicitor… that it has a bearing on the proceedings in relation to my role as a home maker and parent and unusual difficulties which I experienced in this respect.
The Affidavit was objected to on the following basis:
a)Up until service of the Affidavit on 11 August 2016, the husband had not been aware that there was a Kennon[1] type argument being raised or sought to be relied upon by the wife;
b)To be allowed to bring in this evidence at this late stage would be very prejudicial to the husband, particularly as the husband had not been given any prior notice about it; and
c)If the wife was seeking to rely on this additional Affidavit then she needed to seek an adjournment to allow the husband time to consider it. To force it upon the husband to have to deal with it in a relatively short time brings about a substantial prejudice to the husband.
[1] In the Marriage of Kennon (1997) 22 FamLR 1
Counsel for the husband, in objecting to the Affidavit in question, submitted that if leave was granted to the wife to rely on the Affidavit, then his client was not in a position to meet the evidence and would require a period of no more than three months to obtain the instructions in respect of the assertions contained in that Affidavit. The reason for this was that the brother, who the assertions were levelled at, is residing in (country omitted); and also to allow the husband time to issue subpoenas and consider any material produced.
The issue of any inability of obtaining instructions from the husband about the assertion that he did not protect the wife from the alleged conduct of the husband’s brother, was not specifically raised, except as part of a general submission that there would be substantial prejudice to the husband in having to answer the assertion.
When the Court raised the issue of why the husband was not able to answer those matters which were specific allegations against him, Counsel for the husband submitted that that would be splitting the cross-examination and splitting the case. The allegations made by the wife in the Affidavit were said to be grave allegations.
Instructions were duly obtained by Counsel for the wife and the Affidavit was not read in the wife’s case.
The matter then proceeded in the usual course. The wife, who was the Applicant, gave evidence first. She was cross-examined and there then followed some short re-examination.
The wife’s case was then closed and the husband’s case opened.
Prior to the commencement of the husband’s evidence, an issue arose between the parties in respect of the cross-examination of the husband, which resulted in a ruling being sought by the husband.
The issue which arose was this: Counsel for the wife gave notice to Counsel for the husband, of his intention to cross-examine the husband about certain matters which were not the subject of any evidence in chief. Indeed, these were matters contained in the Affidavit of the wife which had been objected to and which was not read in the wife’s case.
It was submitted on behalf of the husband:
a)That the foreshadowed cross-examination was an attempt to put a Kennon argument before the Court using the “back door method”;
b)Cross-examination, while at large, has to be relevant;
c)That there was no evidence before the Court about the issue therefore the matter was not relevant;
d)The fundamental point is that the wife attempted to run a Kennon argument in chief but then after objection, chose not to do so;
e)Any Kennon argument is now closed because the wife sought not to press her evidence on the issue;
f)There is no evidence before Court on which the wife can proceed on a Kennon argument – it is not relevant therefore how can it be relevant for the purposes of cross-examination; and
g)The foreshadowed cross-examination strikes at the very foundation of prejudice to the husband’s case until the issue was raised just prior to cross-examination when the objections to Affidavits were taken at the commencement of the hearing there was no suggestion by the wife that the ‘argument was anything but dead’.
When asked by the court “Why is a matter that is not in evidence, not relevant?” Counsel submitted that with respect in general terms that is correct but not in these specific circumstances. It was not relevant in these circumstances because it is not a discrete issue; it is not the Applicant’s case having been specifically not pressed.
In summary, Counsel for the wife submitted:
a)These types of cases have all sorts of issues which arise during evidence;
b)Evidence going to a Kennon argument is relevant because it is evidence of homemaker and parent contributions;
c)There are no pleadings in this jurisdiction;
d)While there is no evidence from wife to support a Kennon argument and there may never be, depending on cross-examination the wife may be able to call evidence in reply, but it is unlikely that she would be permitted to do so; and
e)There is no reason why these matters cannot be raised in cross-examination and the wife is entitled to cross-examine on the issue it is relevant.
There was then a ruling by the Court that the cross-examination was permitted with Reasons reserved.
Reasons for Ruling
The husband has had through his solicitors the Affidavit of the wife filed on 11 August 2016 since 11 August 2016.
Between 11 August 2016 and until the commencement of the hearing on 22 August 2016, the husband was on notice, through the matters raised in that Affidavit that the wife was raising a Kennon argument – or at least that she sought to do so.
The Solicitor for the husband notified the Solicitor for the wife on 12 August 2016 that the Affidavit was objected to, and the Solicitor for the wife wrote back and confirmed that the Affidavit was being pressed.
The husband was very much on notice about the matters contained in the wife’s Affidavit. These matters are not in evidence though. Notice of matters and evidence are two distinctly different issues.
The authorities dealing with cross-examination are clear. The basic tenants of cross-examination are discussed in Cross On Evidence in the following manner:
The cross-examiner may ask any question of the witness which is relevant to the issue. Subject to that, a cross-examiner has no obligation to give advance notice of the lines of questioning to be employed. Nor is the cross-examiner obliged to give advance notice of the documents to which the witness will be taken.[2]
[2] Cross on Evidence, LexisNexis Online Services accessed 23 August 2016 at 1.45pm, at [17500]
In R v Chin[3] the High Court, in the context of a criminal prosecution, stated:
[3] (1985) 157 CLR 671
A cross-examiner is entitled to ask questions to establish matters relevant to the issues, whether or not the witness has deposed to such matters in his examination in chief. Cross-examination “is not confined to matters proved in chief; the slightest direct examination, even for formal proof, opens up the whole of the cross-examiner's case”. (citations omitted) … The trial judge, of course, retains his discretionary powers to ensure that the cross-examination is not unfair…[4]
[4] Per Gibbs CJ and Wilson J at [14]
…
If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case: see R v Kane (1977) 65 Cr App R 270.
There are, of course, considerations which arise in the disallowance for this reason of questions put during cross-examination which do not arise upon an application by the prosecution to reopen its case. Cross-examination, including the cross-examination of an accused person by the prosecution, may extend to all matter in issue, whether or not they were the subject of evidence in chief by the witness. Thus, apart from any unfairness which may arise from a failure to observe the general requirement that the prosecution should, during the conduct of its case, lead all the available evidence upon which it wishes to rely, there is no reason why it should not lead in cross-examination evidence which relates solely to its own case. With this may be contrasted the practice in Federal courts and many State courts in the United States of America where the view is taken that cross-examination must be limited to matters of credit and matters raised in evidence in chief: see Wigmore on Evidence Chadbourn Rev (1976), paras 1885 et seq. This view has never been taken in this country.
When considering whether any unfairness arises, there is the circumstance that a witness may be re-examined, or further witnesses called, to deal with matters raised for the first time in cross-examination, if necessary after a sufficient adjournment has been granted or other accommodation made to allow for any unfair element of surprise.
These principles were considered by Justice Sackville in Prentice v Cummins (No 6)[5] where His Honour noted:
The approach taken by Dawson J in relation to criminal trials is consistent with that adopted in relation to a civil trial by Young J in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15. There his Honour said (at 22) that it is the duty of the trial judge to ensure that all parties have a fair trial and that in
"carrying out his duties the trial judge must so exercise his discretion in and about the examination and cross-examination of witnesses that a fair trial is assured".
[5] [2003] FCA 1002 at [27]
Justice Kent[6] applied the principles in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) in the context of restricting cross-examination in proceedings in the Family Court by parties said to be in the same interest, where it was noted:
… there is clear law, aside from the Family Law Rules and aside from the provisions of the Evidence Act 1995 (Cth) … that a trial judge has a duty to ensure that all parties have a fair trial. A trial judge must exercise discretion in and about the examination and cross-examination of witnesses to ensure a fair trial.
[6] Ruttledge & Ruttledge and Ors [2014] FamCA 791 at [15]
The expression “procedural fairness” was observed by Mason J, as he then was, in Kioa v West (1985) 159 CLR 550 at [585] as an expression conveying “the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.” Whether procedural fairness is afforded is to be considered in context having regard to the nature of the proceedings.[7]
[7] Re Katherine [2004] NSWSC 899 at [15] per Studdert J in the context of an appeal from the Children’s Court in care proceedings
Orders for property adjustment pursuant to s79 Family Law Act are not by way of pleading. They are by way of Initiating Application, Response and Affidavits. At times, orders for Points of Claim may be made, for example when matters which would normally be by way of pleading are raised in evidence such as issues of constructive trusts.
The substance of the husband’s argument was that because the wife had chosen not to put on any evidence in chief about the matter and indeed had not pressed an Affidavit which dealt with these matters, she was now estopped from cross-examining on the issue. To allow her to do so would cause unfair prejudice to the husband, as it would permit evidence to be obtained through a “back door method”.
To suggest that cross-examination is a “back door” way of putting issues before the Court is not helpful.
These are civil adversarial proceedings. A cross-examiner is entitled to “keep his powder dry” and ask questions in cross-examination which are relevant but which are not the subject of evidence in chief. It is difficult to understand why, if circumstances were such that the husband had not been on notice about these matters, he could have per se successfully objected to being asked such questions in cross-examination.
This is not ‘some entirely new matter’. These are not criminal proceedings where the prosecutor has quite onerous obligations in respect of fairness. It is important to remember what was said by Justice Dawson as noted above in respect of fairness and the exercise of judicial discretion.
There is no grave prejudice to the husband in permitting cross-examination of him on matters which are contained in an Affidavit with which he was served on 11 August 2016 (or peripheral to those issues).
At the conclusion of his cross-examination, the husband will be re-examined if, and as, appropriate. The husband may, once again as appropriate, make further applications to the Court at the conclusion of his cross-examination, or at the conclusion of his evidence.
The husband’s argument in respect of prejudice to him at this point is rejected.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 31 August 2016
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