Kousal v Tack

[2002] FamCA 1152

[2002] FamCA 1152

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA  
AT MELBOURNE  Appeal Nos SA56L and SA57 of 2002
  File No ML7714 of 2001

BETWEEN:

ING ZDENEK GEORGE KOUSAL
Appellant Father
- and -

FRANCES TACK
Respondent Mother

REASONS FOR JUDGMENT

CORAM:  NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING:                 3 December 2002
DATE OF JUDGMENT:             3 December 2002

APPEARANCES:  Mr Glover of Counsel, instructed by, Mulcahy Mendelson & Round, Solicitors, DX 13202, Mitcham, appeared on behalf of the Appellant Father.

Mr St John of Counsel, instructed by, Tolhurst Druce & Emerson, Solicitors, DX 267, Melbourne, appeared on behalf of the Respondent Mother.

Catchwords:

PROPERTY AND MAINTENANCE - JURISDICTION – Whether parties had married.

PRACTICE AND PROCEDURE – procedural fairness – self-representing litigant choosing not to cross-examine opposing witnesses – whether Judge required to advise on the ramifications of not cross-examining.

KAY J:           

1. This is an application for leave to appeal against some of the orders made by Carter J on 3 July 2002.  Her Honour was hearing an application brought by the appellant, in which he sought to have proceedings for maintenance and alteration of the property interests brought by the respondent struck out, on the basis that the Court lacked jurisdiction to hear the proceedings.

1. He asserted that the parties were not parties to a marriage or a void marriage, and accordingly there was no jurisdiction in the Family Court of Australia to deal with issues either of maintenance or of alteration of property interests.

1. The respondent asserted that the parties had gone through a ceremony of marriage in April 1949 in Czechoslovakia.

1. The application for summary dismissal was determined at a hearing that took place before Carter J on 1 July 2002 and 2 July 2002.  At that hearing the appellant was self-represented and the respondent was represented by Mr St John of counsel.  It is convenient at this stage of these proceedings to refer to the parties as “the father” and “the mother”, rather than by the more traditional title of husband and wife, because the issue as to whether or not they were ever validly married remains alive in the proceedings. 

1. What is common ground by way of background is that the father and mother were both born in Czechoslovakia.  They were both born in 1922.  In 1949 they commenced cohabitation.  They migrated to Australia in the early 1950s.  There have been two children born of their relationship in Australia.  There is quite a dramatic dispute between the parties as to when the relationship came to an end.  The father asserts that the parties separated in 1961 and the mother says that they separated in 2001.  That is an example of the extent of matters that were in issue between the parties in these proceedings.

1. The key issue was whether or not the parties had been married, and for the purposes of the Family Law Act it was sufficient to hold the jurisdiction of this Court to make orders in respect of maintenance or alteration of property interests if there had been a marriage, either valid or void (s 71).   It was unnecessary for the trial Judge to determine whether or not the marriage itself was valid or void, but merely to determine whether there had been a marriage. 

1. When the matter came on for hearing before Carter J it commenced to proceed on the basis of the parties making oral submissions to her Honour, based upon the ample affidavit material that was present before the Court from the parties and various witnesses, setting out each of their versions of facts.  At the commencement of the proceedings there was a discussion as to whether or not any of the witnesses were required for cross-examination.  Mr St John indicated that he wished to cross-examine the father and the father indicated that he only wished to cross-examine one or two witnesses, and that did not include the mother.

1. It was clear that her Honour understood the matter that was in issue between the parties.  Mr Kousal asserted there was no marriage so the Family Law Act would not apply and her Honour then set about the task of determining whether or not there had been a marriage, valid or otherwise.

1. After receiving some submissions from the parties the process was outlined as follows (Transcript page 13):

“HER HONOUR:   Thank you.  Now, is this matter to be dealt with simply on the basis of submission?

MR KOUSAL:   Yes, on my side.

HER HONOUR:   Yes.

MR ST JOHN:   I'll be seeking to cross-examine the husband, your Honour, albeit briefly.

HER HONOUR:   Well, if you wish to cross-examine in due course, Mr Kousal, please let me know.

MR KOUSAL:   Do you ask me whether I ‑ ‑ ‑

HER HONOUR:   No, I'm saying if you want to cross-examine in due course, let me know.

MR KOUSAL:   All right.

HER HONOUR:   Because you've heard that Mr St John will want to cross‑examine you, okay?

MR KOUSAL:   Yes.”

1. Then Mr Kousal began to address her Honour.  He was cross-examined by Mr St John, and at the end of the first day there was some discussion about bringing the witnesses the next day: 

“HER HONOUR:   That then I think concludes your case at this stage, Mr Kousal, does it?  You have the right of course to ask some questions.  You're not calling any other evidence, are you, in this respect, in respect of the matters which I'm deciding at this stage, the jurisdictional matters?  I know you want to cross-examine.

MR KOUSAL:   Yes, the son.

HER HONOUR:   Yes, but is he the only person you want to cross-examine?

MR KOUSAL:   Yes.

HER HONOUR:   Yes, thank you...” 

1. Then there were discussions about availability of witnesses.  The next day the parties’ son was briefly cross-examined and there was some cross-examination of one solicitor very briefly.  There were further submissions on how her Honour should deal with the case, then the son was recalled.  An application to reopen and to cross-examine the mother on a discrete point concerning a bank document was refused.  Her Honour heard further submissions and eventually delivered judgment.

1. In the course of the judgment delivered by her Honour on 3 July on an extempore basis, her Honour outlined the matter that was in issue between the parties, and then under the heading of “Issue of Credit and Discussion” she said:

“5. I did not find Mr Kousal to be a reliable witness.  At times he displayed an excellent ability to remember facts and events.  On other occasions, and in particular at times relevant to the outcome of these proceedings, this ability seemed to fail him...”

1. The contested issue of the marriage had been put before her Honour on the basis that the mother was aware that the father had been married in Czechoslovakia in about 1942.  The mother was Jewish and the father was not.  She said that after their relationship began an agreement was reached that he would convert to Judaism.  She asserted that the father underwent a course of religious instruction conducted by Rabbi Gelb.  Following his conversion to Judaism a marriage ceremony took place in the presence of Rabbi Gelb and several witnesses.  The parties exchanged vows in accordance with the Jewish religion and the father placed a ring upon her right forefinger.

1. She further relied upon the agreed fact that the father had undergone a circumcision immediately prior to the conversion as corroborative of the assertion of the conversion to Judaism.  He admitted the circumcision and explained it away on the basis that he had contracted a venereal disease and that it was medically appropriate at the time. 

1. She swore that they subsequently emigrated from Czechoslovakia as husband and wife and came to Australia on that basis.  She said that subsequently children were born of the relationship.  The father had signed the documents relating to the birth of the children in which he acknowledged that he was a married man.

1. Her description of the wedding ceremony was quite elaborate, setting out precisely how the marriage took place and who was present at the time.  It was the father's case that no such ceremony ever took place at all.  The issue that the trial Judge had to determine was whether the ceremony took place or whether there were other indicia upon which she could conclude that there had been a marriage. 

1. The issue of its validity was clouded by the fact that there was clear evidence that until at least 1952 the father remained lawfully married to his first wife and that marriage seems to have been dissolved in Czechoslovakia in 1952.

1. It was the mother's evidence that she was aware of the father's marriage but that notwithstanding that marriage once the father converted to Judaism she believed that any marriage contracted under Jewish law was a valid marriage.  She was corroborated in that belief by evidence of Rabbi Philip Heilbreun, who swore an affidavit in the proceedings, setting out the law of Judaism and indicating that in circumstances where a non-Jew converts to Judaism that conversion renders that non-Jew capable of marrying in Jewish law as if he or she were a single person.

1. In the circumstances that her Honour faced of having heard and read the father's evidence, having heard him cross‑examined, having read the evidence of the mother, her several witnesses and her children, having seen the documentary evidence that indicated that the father had made admissions as to the existence of a marriage, her Honour had to determine the question of whether or not she was satisfied that there was a marriage, albeit a possibly invalid marriage, a void marriage. 

1. She concluded, accepting the evidence of the witnesses involved in the proceedings, none of whom had given viva voce evidence except the father and the son, that:

“In all the circumstances I find that there was a ceremony of marriage.  I find further that Ms Tack believed it was valid, notwithstanding her knowledge that Mr Kousal was not divorced.  I refer here to par 4 of her affidavit filed 7 December 2001 and par 3 of her affidavit filed 25 June 2002.”

1. Her Honour then moved, under the heading “Cohabitation”, to make findings about the period of cohabitation and the manner in which the parties conducted themselves during that time.  She indicated that it was common ground that the parties had cohabited at least until 1961 on the father's evidence, and on the mother's evidence at least until 2001.  She preferred the mother's evidence, given the affidavits of the two adult children, one of whom was cross-examined and the other was not sought for cross-examination.  Each of the children deposed to the fact that their parents had lived together way beyond 1961.  They said their parents were still together when they left home in 1973.  They each visited their parents regularly thereafter.  Each was firmly of the view that their parents’ cohabitation extended into the 1990s.

1. Her Honour further indicated that she took into account that the parties during cohabitation conducted themselves as man and wife, and had made acknowledgments of marriage.  The parties’ son was not cross-examined about his evidence that his parents regularly celebrated their wedding anniversary.

1. Her Honour referred to evidence of the parties' son-in-law, who also was not required for cross-examination.  She accepted his evidence of dinner at a restaurant to celebrate a wedding anniversary.  She said:

“All of these matters add weight to the presumption of the marriage.”

1. Accepting the mother's evidence and relying on external evidence her Honour stated:

“58. I have reached the conclusion that the parties went through a ceremony of marriage which may or may not have been valid.  It was followed by substantial cohabitation, the birth of two children and acknowledgments of marriage.  The presumption has not been rebutted.”

The appeal

1. It is against those findings and the order effectively dismissing the father's application to summarily dismiss the proceedings that this appeal is based.  We have allowed an amendment to the grounds of appeal.  There are now seven grounds relied upon.

1. I shall blend grounds 1 and 2 together.  They assert that the trial Judge erred in law and in fact in finding the parties went through a marriage ceremony.  The findings were based not only upon her Honour's assessment of the credit of the witnesses but on undisputed and incontrovertible facts.  Those facts were that the parties had lived together as man and wife for many years.  They held themselves out as man and wife for many years.  The father had asserted that the parties were married when he provided details to the Victorian Registrar of Births Deaths and Marriages at the time each of the children were born.  He had prepared a family history in which included an entry  “49/04/02 ZK + FM married”.

1. Those facts were of themselves, irrespective of any finding of credit of the parties sufficient for her Honour to base a finding that it was likely the parties went through a marriage ceremony.  Dixon CJ, with whom Fullagar and Menzies JJ agreed, said in Jacombe v Jacombe (1961) 105 CLR 355 at 360:

“…proof that the parties lived together and were accepted as man and wife raised a presumption that they were validly married (see In re Taylor, Dec'd. (1961) 1 WLR 9 ) which is rebuttable only by clear and cogent evidence, and …it is another element to be taken into account in considering whether or not the circumstances as a whole [suffice to prove the marriage]…”

1. Nothing was put to us in submissions that would indicate those findings of fact were not open to the trial Judge in respect of the evidence that was before her. 

1. The submission that there was an error in law in finding the parties went through a marriage ceremony is difficult to understand.  It is a finding of fact.  It is not a finding that it was a valid marriage ceremony, it is simply a finding that there was a marriage ceremony that took place. 

1. Ground 3 asserts that the trial Judge erred in law in finding that she was not required to determine whether the particular ceremony resulted in a marriage.  Again I have difficulty in understanding the ground.  The jurisdictional basis required for the property and maintenance proceedings was that there had been a marriage, albeit being a valid marriage or a void marriage.  Nothing else is required for the jurisdiction of the Family Law Act.  Her Honour made a finding of fact on that matter.  No issue of law arose, other than to determine whether the events described, either the ceremony itself or the post-ceremony events, would amount to a marriage, valid or otherwise.  In my view nothing was demonstrated to this Court to indicate any error by her Honour in her finding that she did not need to determine the validity of the marriage ceremony.

1. Ground 4 is that the learned trial Judge erred in finding the appellant bore the onus of disproving the marriage.  To the extent that her Honour indicated that the circumstances raised a presumption of validity of marriage then in my view, in order to dispel that operation of presumption there was clearly an onus upon the appellant.  The circumstances where he admits a marriage, where he conducts himself and holds himself out to the community as being married would of themselves raise an appropriate obligation upon him, if he was denying the existence of the marriage, to properly demonstrate that to the Court.  In my view there is no substance in the ground as alleged.

1. Ground 5 is that the learned trial Judge erred in finding that there was a presumption of marriage.  The problem that confronted Carter J in this case was similar to that dealt with by Crockett J in Sheludko v Sheludko [1972] VR 82. The wife asserted the parties had been married in a ceremony in Eastern Poland in 1943. The husband denied that any such ceremony took place. The parties lived together for 19 years and gained a reputation in the community for being a married couple. His Honour said at 84-86:

“The petitioner does not, it appears to me, have to rely merely on the question of who is to be believed between her and the respondent by recourse either to credibility or probabilities in relation to the question of whether there was a marriage.  Even if (contrary to the finding of fact made by me [that the ceremony took place as described by the wife]) I were left by the evidence in a state of indecision as to whether she went through a form of marriage ceremony, the lengthy period of cohabitation during which the parties lived and were known as man and wife entitles the petitioner, in my view, in law to rely upon a presumption that they are husband and wife.

…

…Further, during this period the respondent has persistently and consistently (on occasions by declaration) averred that he is married and married to the petitioner.  He has at all times held her out as a wife.  His children have been baptised and named after his name.  He has permitted them to be born in circumstances where one ought to presume that his desire and belief was that they would be legitimate and not illegitimate.  He has lived with his consort in circumstances where one would assume he would wish her to be wife and not his concubine.  In a period of cohabitation as long as that, with a reputation of being married persons, existing for such a period, in such circumstances, in many different communities, with the respondent’s constant assertion of his being a married man, it would require, in my view, the strongest evidence of the greatest cogency on the part of the respondent to rebut the presumption of a valid marriage which, in my view, in law exists.”

1. I adopt that reasoning as apposite to this case.  Nothing has been demonstrated to indicate any support for ground 5 and indeed I do not believe it was firmly pressed.

1. Ground 6 is a catch-all ground.   “The learned trial Judge erred in overruling the applicant's objection to jurisdiction.”  The particulars of the ground seem to be that she was in error in finding that the parties went through a marriage ceremony.  This seems to add nothing to the grounds already argued and dealt with above.

1. The amended ground 7 added today is the one that I think has the greatest potential for any substance.  It asserts that the learned trial Judge denied the appellant procedural fairness.  What is asserted is that in failing to advise the appellant of the effect of not cross-examining witnesses the trial Judge had failed to comply with the minimum requirements of procedural fairness as laid down by this Court in cases such as Johnson (1997) FLC 92-764.and more recently in Re F: Litigants in person guidelines (2001) FLC 93-072.

1. In each of those cases the Full Court set out what it thought were appropriate guidelines for dealing with unrepresented litigants.  The relevant guidelines, as refined by the Full Court ultimately in Re F, are as follows:

“A judge should ensure as far as possible that procedural fairness is afforded to all parties, whether represented or appearing in person, in order to ensure a fair trial. 

A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross-examine the witnesses. 

A judge should explain to the litigant in person any procedures relevant to the litigation. 

A judge may provide general advice to a litigant in person, that he or she has a right to object to inadmissible evidence and to inquire whether he or she so objects. 

Where the interests of justice and the circumstances of the case require it a judge may draw attention to the law applied by the court in determining issues before it, question witnesses, identify applications or submissions which ought to be put before the court, suggest procedural steps that may be taken by a party, clarify the particulars of the orders sought by a litigant in person or the bases for such orders. 

The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.”

1. The procedural guidelines require the judge to inform the litigant of the right to cross-examine.  They do not, in my view, require the judge in each case to explain to the litigant the ramifications of a failure to cross-examine, nor do they oblige the trial Judge to make a tactical decision on behalf of the litigant as to which witnesses it might be useful to cross-examine and the manner in which they should be cross-examined. 

1. In this case the right to cross-examine was clearly drawn to the father's attention and he exercised it.  He made a conscious decision to cross-examine one witness and made conscious decisions not to cross-examine others.  There was not, in my view, an obligation on the trial Judge to explain carefully to the litigant the ramifications of making that conscious decision.  The interests of justice in the circumstances did not, in my view, require the Judge to draw attention to the laws of evidence to be applied by the court in determining the issues before it. 

1. In any event there is no evidence before us that the appellant did not understand the ramifications of not cross-examining a witness, nor is there any evidence before us that if he understood the ramifications he might have acted differently.  Further there is nothing in Carter J’s judgment that expressly relies upon inferences drawn by her Honour arising from the appellant’s failure to cross-examine the various deponents.  Generally I would agree with the Chief Justice’s observations in T v S (2001) 28 FLR 342 at para 209 where he said that a self-represented person’s lack of capacity to present aspects of their case in a particular manner often does not lend itself to the drawing of the adverse inferences that are usually drawn when parties are represented.

1. The issue to be determined was clearly identified.  Had these parties conducted themselves as man and wife following on their partaking in a marriage ceremony, whether the marriage ceremony was valid or otherwise?  There was overwhelming evidence to support the mother's position.  The father was given an opportunity to challenge the mother’s evidence.  He chose not to challenge the evidence, other than by giving his own evidence and cross-examining two witnesses.  In my view, there was no substantive procedural injustice which occurred.  He was given an opportunity to say what he wanted to say and he chose to say it in the manner in which he did. 

1. In the circumstances of this case where there was overwhelming material to support the conclusions reached I am not persuaded that there has been a denial of procedural fairness which would have the effect of having this Court set aside the findings of the trial Judge. 

1. There is an issue in this case as to whether or not leave to appeal is required.  In my view it is an interlocutory order and leave to appeal is required.  For the purposes of these reasons for judgment I do not propose to hide behind the initial hurdle.  I am content to assume that there is an issue of principle that has been sufficiently identified to make it appropriate for us to rule in this matter.  In my view it is appropriate that the appeal be dismissed.

NICHOLSON CJ:  

1. I agree with the conclusion reached by Kay J and with his views and his findings in relation to what might be called the substantive grounds of appeal.  So far as the issue of whether procedural fairness was afforded in this case, while I think that it would have been preferable for her Honour to have drawn attention to the consequences of the appellant not cross‑examining the relevant witnesses, I do not think in the circumstances of this case that it amounted to a denial of procedural fairness. 

1. I think also that this case in effect falls within a category of cases referred to by the High Court in Stead v State Government Insurance Commission (1986) 161 CLR 141 at 1456 to the effect that:

“[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.  An order for a new trial in such a case would be a futility.  For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.  By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it will be futile to order a new trial.”

1. In my view, in this case, had the appellant been advised of the consequences of failure to cross‑examine and had he accepted that advice and cross‑examined for the reasons discussed by Kay J, the result would have been no different.  I think it also relevant to refer to certain passages in Re F in considering this issue.  At 88,273, the joint judgment said:

“However guidelines are exactly what they are and they are neither immutable nor incapable of provision.”

1. Then again it is perhaps relevant to refer to the fact that in Re F what the Full Court intended, as I apprehend it, was to relax the rather rigid guidelines that had been laid down in Johnson and on the issue of assistance, at paragraphs 229 and 30 the Full Court said:

“With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines, nor should the nature of the interventions from the bench be rigidly proscribed or prescribed.  The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served.  Therefore the application of the guidelines must depend on the circumstances of the particular case. 

We have noticed that a number of litigants in person are endeavouring to use the alleged breach of the guidelines as a ground of appeal in itself.  We do not think it is appropriate for the guidelines to be used in this way as there may well be good reason in particular cases to depart from some of the guidelines but always remembering the court's obligation to provide procedural fairness and a fair trial.  Thus, if in the circumstances of a particular case a trial judge does not follow the guidelines, it does not follow that there has not been procedural fairness and a fair trial.”

1. I should of course add that in this case I do not consider that there was a breach of the guidelines by the trial Judge.  I simply consider that, as I have said,  it would have been preferable for her to have drawn the appellant's attention to the consequences of not cross‑examining.  I think I should also say, to remind those involved in this matter, that the Full Court made it very clear in Re F that it is simply not possible to create a level playing field where one party is represented by a professional and the other is not.  If a person therefore choses to appear unrepresented before the court, they cannot expect the trial judge, consonant with his or her duty to provide a fair trial, to in effect get into their corner and provide them with tactical and other advice as to the consequences of certain actions.  For all those reasons I agree that the appeal should be dismissed.

MONTEITH J:  

1. For the reasons that have been expressed by the Chief Justice and Kay J I agree that the appeal should be dismissed.

NICHOLSON CJ:  

1. Yes.  The orders of the court will be

1.      The application for leave to appeal be granted.

2.      That the appeal is dismissed.

3.      That the appellant pay the costs of the respondent of an incidental to the appeal to be taxed or otherwise agreed between the parties.

I certify that the 49 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate