Kawada & Kawada & Ors (No 2)

[2011] FamCA 658

FAMILY COURT OF AUSTRALIA

KAWADA & KAWADA AND ORS (NO. 2) [2011] FamCA 658

FAMILY LAW – PRACTICE AND PROCEDURE – TRIAL – Section 75(2)(o) – Cross examination on conduct by husband not allowed – Husband asked for copy of an affidavit filed by the wife – Attempted cross examination as to husband’s motive in seeking to have a copy of the wife’s filed affidavit in particular whether the husband’s purpose in that request was to give the affidavit to prosecution authorities for possible prosecution of the wife for an offence by the wife under section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) - Wife already had admitted in these proceedings that conduct by her in making Skype recordings offended section 7 – Cross examination not allowed as irrelevant to any conduct which properly under section 75(2)(o) could be considered

Family Law Act 1975 (Cth) s 75(2)(o)
Telecommunications (Interception and Access) Act 1979 (Cth) s 7

In the Marriage of Soblusky (1976) FLC 90-124
Kowaliw v Kowaliw (1981) FLC 91-092
Polonius & York [2010] FamCAFC 228 at [88]-[89]

APPLICANT: Ms Kawada

FIRST RESPONDENT: Mr Kawada

SECOND RESPONDENTS: T Kawada and M Kawada

FILE NUMBER: BRC 9952 of 2009

DATE DELIVERED: 20 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 20 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page SC

SOLICITOR FOR THE APPLICANT: Mr Jones
Jones Mitchell Lawyers

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENTS: In person via telelink in Japan

Ruling

1. Cross examination of the husband concerning any complaint or intended complaint by the husband to prosecution authorities in respect of the wife’s conduct offending section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) is irrelevant to any conduct of the husband which properly under section 75(2)(o) could be considered.

IT IS NOTED that publication of this judgment under the pseudonym Kawada & Kawada and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9952 of 2009

Ms Kawada

Applicant

And

Mr Kawada

First Respondent

And

T Kawada and M Kawada

Second Respondents

REASONS FOR JUDGMENT

1. Section 75(2)(o) of the Family Law Act 1975 (Cth) invites consideration of conduct with financial consequences or, broadly, matters of a financial nature. Mr Page SC seeks to cross examine the husband in relation to a complaint he made to the authorities in or about November 2010 concerning the wife’s illegal use of Skype to intercept telephone communications between the husband and his father in Japan, which conduct of the wife Mr Page conceded on 10 March 2011 was contrary to s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act).

2. The line of questioning by Mr Page, out of which this matter I am now determining arises, relates to the husband at the Bar table yesterday or the day before having asked for a copy of the wife’s affidavit filed 28 May 2010 being an affidavit in which she set out how she made the Skype recordings. 

3. In cross examination Mr Page asked the husband whether his intention in asking for a copy of that affidavit was to give it to the police.  The husband said in response “No comment”. Thus, my ruling on relevance of the question was sought.

4. Mr Page submits that the husband’s conduct in making the complaint to the police, and indeed if his intention in obtaining the affidavit is to give a copy of it to the police, is relevant under section 75(2)(o) on the basis that it may result in the future in the wife being charged with an offence, namely a criminal or quasi-criminal offence, with financial consequence to her potentially of a monetary fine, and certainly the incidence of legal costs, if she is charged. Mr Page pointed to section 105 of the Act as a provision imposing the maximum penalty for an offence under the Act of a maximum two years imprisonment, but submitted, as I have said, that in any event even if the wife were not imprisoned, there would be the potential for a fine and at least the consequence of the incidence of legal costs, if she is charged.

5. At an early stage however in the history of the Family Law Act 1975 (Cth) the Full Court firmly rejected that conduct even “gross and obvious” misconduct should be considered relevant under s 75(2)(o) on the basis that most cases usually would be adequately covered under existing provisions: see, eg, In the Marriage of Soblusky (1976) FLC 90-124 at 75,575; 75,585-7. Since then, cases such as Kowaliw v Kowaliw (1981) FLC 91-092 recognise the relevance of conduct in the context of reckless or wanton waste with financial impact. See also Polonius & York [2010] FamCAFC 228 at [88]-[89]. However, the cross examination is not directed to conduct in such recognised category.

6. If Soblusky in the future for any reason should be regarded now as not good law, then in this particular case I find that any test of gross or obvious misconduct of the husband is not established.  In my view it is not gross or obvious conduct to report to the proper authorities a criminal offence or quasi-criminal offence.  Rather, it is in the interests of justice that such should be encouraged, not deterred.  Indeed it is not in the public interest and contrary to the interests of justice if such should be deterred.  It must be recalled that the Wachtel test (referred to in Soblusky, which the Full Court in Soblusky rejected) related to such gross and obvious misconduct:

   … that common justice required that conduct to be taken into account.

7. Moreover, the submission belies utterly that if the wife is prosecuted for her illegal Skype interception recordings (see reasons for judgment 19 July 2011 in relation to these and the admission made by Mr Page on the wife’s behalf on 10 March 2011 noted to the orders of that day) it is her own conduct which will have determined her fate if she is prosecuted for her own illegal act. 

8. Further, the husband’s complaint was made to the authorities in November 2010.  The wife, as at today, has not been charged and may not be charged.  The whole matter thus is in the realm of speculation and conjecture.

9. I will therefore disallow the line of questioning as irrelevant to any conduct of the husband which properly under section 75(2)(o) I could consider.  That is my ruling.

10. In summary, I have made a ruling not allowing Mr Page to continue on that line of questioning as not relevant.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 21 July 2011.

Associate:     

Date:              9 August 2011