Kelby and Kelby

[2020] FamCA 815

FAMILY COURT OF AUSTRALIA

KELBY & KELBY [2020] FamCA 815

FAMILY LAW – PRACTICE AND PROCEDURE – Application to reopen – Where the final hearing has concluded and judgment is reserved – Where the applicant wife made an oral application to reopen the case to be granted leave to explore whether or not she could adduce further evidence about the respondent husband’s health and life expectancy – Where the evidence the wife relies upon in support of her application is third-hand hearsay – Where the husband disputes the evidence – Where the husband is prejudiced by the wife’s application to reopen – Application dismissed.

Family Law Act 1975 (Cth) s 75

Reid v Brett [2005] VSC 18

APPLICANT: Ms Kelby

RESPONDENT: Mr Kelby

FILE NUMBER: SYC 8071 of 2014

DATE DELIVERED: 25 September 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 7 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fernon

SOLICITOR FOR THE APPLICANT: Yates Beaggi Lawyers

COUNSEL FOR THE RESPONDENT: Ms Gillies, SC

SOLICITOR FOR THE RESPONDENT: McGirr Lawyers

Orders

1. The wife’s oral application made 7 August 2020 to reopen the case is dismissed.

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 Kelby & Kelby 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 SYDNEY

FILE NUMBER: SYC 8071 of 2014

Ms Kelby

Applicant

And

Mr Kelby

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was listed, part heard, on 7 August 2020 for the purpose of hearing, if necessary, further expert evidence and receiving any further submissions in reply by the husband. The experts agreed and no further evidence from them was required and the husband elected to make no further submissions. In those circumstances I reserved my decision in respect of the substantive hearing.

2. On 7 August 2020 the wife was given leave to make an oral application to reopen the case in circumstances where the final hearing had concluded but judgment had not been delivered. The subject of that hearing was competing applications for property settlement orders. Those proceedings had commenced in December 2014 and have had a protracted history.

3. An email sent by the solicitors for the wife at 12.31 pm on 5 August 2020 read in part:

   …we are yesterday instructed that the Respondent Husband in presently in U Hospital and that his condition might be terminal. We understand (informed by a conversation between the parties Daughter, Ms Y, and the Respondent's present partner, Ms V) that the prognosis is for amputation of a limb, which he has refused. The Applicant Wife understands that the Respondent's condition is perilous such that he may not survive such to leave Hospital. In those circumstances, as we presently know them, and given the Respondent's life expectancy is a matter relevant to the Court's discretion under section 75(2) of the Act, the Applicant Wife seeks His Honour's leave to issue subpoenas upon the Hospital to reveal the diagnosis / prognosis of the Husband, and to issue Notice to Produce upon his solicitor for disclosure, as to the Respondent's condition (prognosis and diagnosis).

4. At 4.18 pm on 6 August 2020, the wife forwarded by way of an attachment to an email, an affidavit by the wife which relevantly said:

   4.On or around Thursday 30 July 2020, I had a telephone conversation with my daughter Ms X. A conversation ensued with words to the following effect:

   Ms X: “I’ve just spoken with Ms V about Dad. She said Dad has lost control of his bowel and is in a lot of pain. She thinks he's not going to last much longer. She says he's lost a lot of weight, and looks just like Mr W (his Dad) just before he died. He's anaemic and is having blood and iron transfusions, can't eat and is crying. He's on high doses of morphine, and has infection in his leg and bones. They've recommended amputation and he refuses to do it. Ms V thinks he won't last much longer.” 

   Ms Kelby [the wife]: “From my experience of treating patients for similar infections he will have to have the amputation otherwise the infection will kill him. If he's on high doses of morphine and has kidney failure then I don't think he is going to make it.”

5. It is not controversial that the wife worked as a health professional up until about 2014.

6. At 9.32 am on 7 August 2020, the husband’s solicitor forwarded by way of an attachment to an email, an affidavit by the husband’s solicitor which relevantly deposed to the fact that at about 4 pm on Thursday 6 August 2020 he had a conversation with Ms V, the husband’s de facto partner. He says that Ms V denied having a conversation with the parties’ daughter Ms Y concerning her father’s health as alleged in the email received on 5 August 2020 from the wife’s solicitors. She told the husband’s solicitor that the last time she spoke to Ms Y was a long time ago. Ms V told the husband’s solicitor that the husband was admitted to hospital recently. He had not been eating. As far as she was aware, he was suffering from the side effects of tablets which caused him to have a high potassium level. She indicated that the husband had told her that he has vascular and kidney problems but he now feels much better and has been told that he would be released from hospital that day.

7. A number of observations flow from that evidence:

   a)Notwithstanding the wife’s conversation with her daughter, Ms X on 3 July 2020, she did not raise this issue with her lawyers until 4 August 2020;

   b)The information that she gave her lawyers on 4 August 2020 (in relation to which daughter she had the conversation with) is different in the affidavit that she swore or affirmed on 6 August 2020;

   c)The husband’s solicitor’s conversation with the husband’s de facto partner was before the receipt of the affidavit identifying a different daughter as being the source of the information.

8. Counsel for the wife makes the point that the solicitor for the husband had the affidavit that was forwarded on the evening of 6 August 2020 and the husband’s solicitors’ affidavit was sworn on the morning of 7 August 2020 and that there is no denial of the conversation with Ms X in that affidavit. Whilst that is so, the conversation he had with the husband’s de facto partner was before that affidavit was received.

9. It was not a matter of contention in the substantive hearing that both parties said that they had significant and ongoing health issues. The husband gave evidence in the substantive hearing that he had a partial amputation of his foot last year. In that hearing, neither party had filed any admissible expert evidence in relation to their current health issues. Both parties successfully objected to the tendering of statements in respect of their health from treating doctors.

10. In the wife’s outline of argument a submission is made that having regard to the nature of the husband’s health issues disclosed by him and his concerns expressed about his longevity, life expectancy appears to be significantly shorter than the wife’s. There was however no evidence led in relation to the husband’s life expectancy, certainly not from any person qualified to give that evidence.

11. In Reid v Brett [2005] VSC 18 (8 February 2005) Habersberger J said:

    41.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:

    (a)the further evidence is so material that the interests of justice require its admission;

    (b)the further evidence, if accepted, would most probably affect the result of the case;

    (c)the further evidence could not by reasonable diligence have been discovered earlier; and

    (d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.

    …

    (Citations omitted)

12. As can be seen from the evidence relied upon by the wife to support this application, it is at best third-hand hearsay. The evidence is substantially disputed by the second-hand hearsay evidence of the husband’s solicitor’s conversation with the husband’s partner.

13. The wife’s third-hand hearsay in support of this application however, is not the further evidence that the wife might seek to admit in the substantive hearing. What the wife seeks to do is issue subpoenas for medical records to reveal the husband’s current diagnosis and prognosis.

14. It is obviously not possible to say whether or not that further evidence would be so material that the interests of justice required its admission or if accepted, it would most probably affect the result of the case. As already indicated, the wife did not exercise reasonable diligence in making an effort to establish the diagnosis and prognosis which the husband had at the time of the substantive hearing, despite expending a large amount on legal costs. Those things could have been discovered earlier and evidence about the husband’s life expectancy could have been adduced at the hearing which had concluded.

15. Nor has the wife established in the circumstances of this case, that a shortened life expectancy, if accepted, would most probably affect the result of the case. That is in circumstances where the parties separated in late 1999 and that the husband has been living in a new de facto relationship for over 14 years.

16. I find the husband is prejudiced by the prospect that, if the wife’s application is granted, this case will drag on even further and the tortious history of this litigation will be extended.

17. The wife’s oral application to reopen the case shall be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 25 September 2020.

Associate: 

Date:  25.9.2020