Jeeves and Jeeves

In this matter before Cronin J, the husband sought to dismiss the wife's application, while the wife sought to have her application and the husband's response adjourned for a final hearing. The proceedings concerned applications filed in late 2006 and early 2007, with a prior order made in January 2007 and further orders in April 2007.

The central legal issue before the court was whether the husband's failure to respond to the wife's affidavit and another affidavit constituted a basis for drawing an adverse inference against him, thereby allowing the wife to rely on that evidence in contested proceedings. This involved considering the principles governing the drawing of inferences from silence in the context of family law proceedings, particularly when evidence has not been tested by cross-examination.

Cronin J rejected the proposition that an adverse inference should be drawn from the husband's silence. The court reasoned that if the husband had responded and disagreed with the wife's assertions, the evidence would have become contentious. Applying the principles from cases such as *Jones & Dunkel* and *GWR and VAR*, the court held that it was not appropriate to rely on evidence in such circumstances, especially when there had been no opportunity to test it through cross-examination. The court distinguished this situation from cases where facts are non-contentious or where an inference is permissible in summary judgment proceedings, as discussed in *Bigg & Suzi*.

The court ordered that the husband's application be dismissed. The wife's application and the husband's response were adjourned to be fixed for a callover by a judge for final hearing, with priority given from a specified date. Certain paragraphs from previous orders were discharged, and the costs of a specific appearance were reserved for the trial judge. Provisions were also made for written submissions regarding costs.