Kirke and Xuan and Anor (No. 2)

[2019] FamCA 875

FAMILY COURT OF AUSTRALIA

KIRKE & XUAN & ANOR (NO. 2) [2019] FamCA 875

FAMILY LAW – RULING – whether to admit into evidence a document purporting to be an affidavit and exhibits of the second respondent – document signed but no jurat clause – no evidence of its translation – no evidence of the circumstances of its creation – document contains a “representation” for the purposes of s 63 of the Evidence Act – maker of document unavailable as defined – document admitted into evidence.

Evidence Act 1995 (Cth) sch 2, ss 63, 67
Family Law Rules 2004 (Cth) ch 15

APPLICANT: Mr Kirke

FIRST RESPONDENT: Ms Xuan

SECOND RESPONDENT: Ms Moye

FILE NUMBER: MLC 8183 of 2015

DATE DELIVERED: 20 November 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Wilson J

HEARING DATE: 20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D. A. Carne

SOLICITOR FOR THE APPLICANT: WMB Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr G. P. Thompson

SOLICITOR FOR THE FIRST RESPONDENT: Nevett Ford

COUNSEL FOR THE SECOND RESPONDENT: Mr J. M. Salamanca

SOLICITOR FOR THE SECOND RESPONDENT: Unite Legal

Orders

1. Leave is granted for the document purporting to be an affidavit of Ms Moye filed 27 April 2018 to be admitted into evidence.

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 Kirke & Xuan & Anor (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 8183  of  2015

Mr Kirke

Applicant

And

Ms Xuan

First Respondent

And

Ms Moye

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. Upon the resumption of the trial of this proceeding, Mr Salamanca of counsel who represents the representative of the second respondent applied to rely on a document that at first blush looks like an affidavit of Ms Moye despite the fact that Ms Moye will not be attending court to be cross-examined on the affidavit, nor will she swear herself to it.  Mr Carne of counsel for the applicant has opposed the admission of the affidavit on a collection of grounds.  Mr Thompson of counsel for the first responded has supported Mr Salamanca’s contentions for the admission of the document.  Before turning to the threshold question of the admissibility, it is desirable to describe the document. 

2. Strictly speaking, the document is not an affidavit. It is not sworn or affirmed. It is not in a form that meets the requirements of chapter 15 of the Family Law Rules.  There is no jurat provision attached to it.  It appears that the document has been translated, and in debate with counsel it emerged that Mr Salamanca’s instructor obtained the details of the affidavit from communications with Ms Moye,  although the precise nature of those communications were not explored to any degree.  To the document, which I shall not describe as an affidavit by reason of its formal defects, were exhibited a number of documents some of which appear to have very little in the way of prohibitive connection to the substance of the document while others are in the nature of bank documentation, purportedly substantiating the transfer of funds that is said to represent the nature of the advance made by Mr Salamanca’s ultimate client, the mother of Mr Thompson’s client.

3. The document consists of 15 numbered paragraphs. It is expressed in the first person singular for the most part but it is premised on the fact that the deponent is not fluent in the English language and therefore the document required translation.

4. The circumstances of its translation were not given, a fact that I accept and is not the subject of serious disputation.  At its core the document records the phenomenon of the provision of funds by Mr Salamanca’s ultimate client to her daughter, a fact in issue in this case that has been in issue for some time.  Prior to the trial being adjourned upon its commencement earlier this year, the maker of the document attended court.  At the time she was in a wheelchair and was assisted by various persons.  She was obviously of advanced years and infirm.  Mr Carne of counsel took me to some of the details leading to the putative deponent’s personal circumstances. It appears that her capacity and inroads into it have been progressively deteriorating for the past 10 years.

5. It is not necessary to go into any detail about that at this stage. Suffice it to say that the person who made the document upon which Mr Salamanca relies has been of dubious mental fabric for a sustained period. Mr Carne made much of her capacity to provide instructions in, or having regard to, that state of her mental fabric. However, in the absence of a detailed exposition of the circumstances of that I proceed on the basis that the maker’s mental fabric has been fragile for a considerable time. Questions about the formal regularity of the document purporting to be an affidavit were conceded to Mr Salamanca who recognised that the document does not meet the requirements of chapter 15 of the Family Law Rules.  That much is obvious in the sense that the document on its face is not expressed to have been made before a particular person, although the signature of the putative deponent appears on page 6 of 83.

6. The significance of the document lies not so much on its formal status as an affidavit but rather on the contents of it and the exhibits to it. Mr Salamanca contended that I should receive the document for being an exception to the hearsay rule underpinned by s 63 of the Evidence Act and in particular on the fact that the document records representations by a maker who is presently “unavailable” within the definition of s 4 to schedule 2 of the Evidence Act. In that definition a person is unavailable for the reasons given in subsection 1(a) to (g) including the competence of the person to appear and give evidence. It seemed to me that Mr Salamanca was correct in his contentions in respect of s 63 to the effect that this document was or had the character of being a representation by a person who is not to be called to enter the witness box, to swear up to the document, nor make herself available for cross-examination.

7. Such circumstances arose by reason of her want of competence, and therefore unavailability, for the purposes of s 4. It seemed to me that the material in the document upon which Mr Salamanca wished to rely is germane to a fact squarely in issue in this case, namely, the circumstances and legal characterisation of a significant advance between the wife’s mother and the wife. That makes it probative, albeit that the circumstances of the translation of the document may be on the margins. Under s 67 of the Evidence Act notice of an intention to rely on a document sought to be given under s 63 is required. It turns out that some little time ago, and certainly within the time contemplated by s 67, notice of an intention to rely on the document was given. There does not appear to be any particular issue arising out of any failure to give due notice of intention to rely on the document. Section 67 of the Evidence Act did not appear to present insurmountable obstacles.

8. Mr Carne quite properly focused the debate on the consequences of the admission of the document.  He said that in the absence of its maker, his client through him, would not have opportunity to test the details of the document.  He said ultimately, whether there is truth or otherwise in the contents of the document sought to be adduced through Ms Moye remains at large.  There is certainly merit in those contentions but in my view they do not represent a sufficient basis for excluding or refusing the admission of the document.  Mr Carne will be at liberty to challenge the other person to the transaction, namely Mr Thompson’s client.

9. No doubt Mr Carne will challenge that witness based on the information already given in that witness’s affidavit material to be tendered in this case. To the extent that the other party to that transaction – namely, Mr Thompson’s client’s mother – puts a version of events either consistent or inconsistent with the version given by the wife, will be a matter that will provide fertile ground for exploration in cross-examination.  But that highlights all the more the probative nature of the document, as opposed to a basis for its exclusion.  The truth remains that this witness is not available to give evidence in this case by reason of her infirmity.  She is compelled to reside in China. 

10. In fact, her personal circumstances were the very reason for the appointment of Mr Salamanca’s client as a litigation guardian in this case.  Self-evidently upon the appointment of the litigation guardian, it was unlikely that Ms Moye was going to enter the witness box at all.  That said, I make no criticism of Mr Carne in his trenchant opposition to the admission of the material.  Having said that, I am of the view that the representations recorded in the document render it of utility in this case.  As to the weight to be given to it, that remains a matter of contention.  Mr Carne correctly pointed out that he will be making submissions as to the weight to be accorded to it. I would expect nothing less. Whether the document will elevate the contentions of Mr Salamanca’s ultimate client in the way he says remains for another day that will involve questions of the law of contract, principles of equity and other issues.

11. It seems to me that in those circumstances it is appropriate to receive the document. I will describe it as merely a document (I do not yet describe it as an affidavit) of Ms Moye undated, and the exhibits thereto.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 20 November 2019.

Associate: 

Date:  27 November 2019