LIVINGSTON & LIVINGSTON
[2015] FCCA 1171
•6 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIVINGSTON & LIVINGSTON | [2015] FCCA 1171 |
| Catchwords: PRACTICE AND PROCEDURE – Application to adduce further evidence – part-heard hearing. |
| Legislation: Family Law Act 1975 |
| Allesch and Maunz (2000) 204 CLR 172 Baghti & Baghti and Ors (No.2) [2014] FamCAFC 204 Jackson & Shea [2013] FamCA 692 Smith v New South Wales Bar Association (No.2) (1992) 176 CLR 256 Urban Transport Authority (NSW) v NWEISER (1992) 28 NSWLR 471 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 5 August 2009 C1/2009 |
| Applicant: | MR LIVINGSTON |
| Respondent: | MS LIVINGSTON |
| File Number: | DNC 187 of 2013 |
| Judgment of: | Judge Harland |
| Hearing date: | 18 February 2015 |
| Date of Last Submission: | 7 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harriss |
| Solicitors for the Applicant: | Mills Oakley Lawyers Pty Ltd |
| Counsel for the Respondent: | Ms Farmer |
| Solicitors for the Respondent: | Withnalls Lawyers |
ORDERS
That orders 5 to 8 of the application in case filed on 28 January be dismissed.
That the issue of costs with respect to the application in a case be reserved.
That the orders made on 20 November 2014 be discharged.
That the matter be listed for the final day of hearing on 15 May 2015.
That the parties file a joint balance sheet and written submissions with respect to the property issues by 4.00pm on 12 May 2015.
IT IS NOTED that publication of this judgment under the pseudonym Livingston & Livingston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 187 of 2013
| MR LIVINGSTON |
Applicant
And
| MS LIVINGSTON |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband filed an application in the case on 28 January 2015. The matter was listed as the same time as the final day of the part heard trial. The trial could not continue that day because the wife was in hospital, having fallen ill with pancreatitis.
I expressed concerns about aspects of the husband’s application in particular with respect to maintenance and child support. I raised my concern that the husband was seeking to effectively re-open his case. On that day I directed the parties file written submissions with respect to the concerns I raised. I indicated that I would then deal with the matter in Chambers.
The parties sought to have urgent consent orders made in Chambers dealing with the sale of properties and the proceeds of sale which included partial property settlement. Those orders were made on 25 March 2015. That disposed of part of the application in a case and the response to the application in a case.
The husband was several weeks late in filing his written submissions. Unfortunately the submissions do not address the issue of the principles which apply when a party seeks to reopen the case, which is in effect what his application is. It is therefore disappointing that the submissions do not address these issues.
History of proceedings
It is important to provide a background to the history of these proceedings before considering the outstanding issue as I am asked to determine this application.
This matter has been strongly litigated since its inception. Several applications in a case have been filed and argued.
The final hearing commenced in May 2014. The matter was initially listed for final hearing on 18 and 20 December 2013 and had to be delayed because of the father’s late provision of a substantial number of disclosure documents. The hearing had to be aborted on the third day of the trial in May 2014 because of the husband’s mental health. Due to the father’s presentation outside of court his lawyers arranged for an urgent appointment with psychologist Ms D who raised the issue about the husband’s capacity to proceed with the hearing and give instructions.
The hearing was adjourned so that the father’s lawyers could obtain a psychiatric assessment of the father. The mother is one of the few (occupation omitted) in the Northern Territory. It is necessary for the father to see an interstate psychiatrist. The father filed a report by that psychiatrist which indicated that the father had capacity but would not be able to proceed with the hearing for a couple of months.
On 23 June 2014 I listed the matter for a further three days of hearing commencing on 20 November 2014. Mr S prepared the family report in this matter. It appears that although the lawyers put him on notice that he was required for cross-examination he did not advise the parties promptly that he would be away during the hearing period. He was overseas until the middle of January and was not able to give evidence by telephone whilst overseas. If he had responded to the lawyers promptly then alternate dates could have been allocated. As it stands it only came to the attention of the parties and the court a couple of weeks before the hearing was due to resume. As the matter is part heard no other hearings were listed on those days so valuable court time would have been lost if the hearing did not proceed.
In those circumstances I listed the matter for further hearing for one day on 5 March 2015.
Due to my transfer from the Darwin Registry to the Melbourne Registry I brought the hearing forward to 19 February 2015. As noted above the hearing could not continue on that day. The parties have sensibly agreed that the last part of the hearing can be conducted by video link from the Melbourne Registry. The only witness left to give evidence is the family consultant subject to the orders I make pursuant to this application in a case. The hearing has already been extended due to circumstances outside of the control of the parties and the court.
The thrust of the husband’s written submissions are that the court will be unable to properly determine the just and equitable arrangement between the parties unless the husband can put on further evidence with respect to his current financial circumstances and his employment prospects.
The husband quotes Justice Kirby in the decision of Allesch and Maunz (2000) 204 CLR 172 and his comments about procedural fairness. Procedural fairness is about the opportunity to be heard. The husband has had the opportunity to be heard and in fact granted leave to put on updating material about his changed financial circumstance before the hearing resumed in November 2014. See also Baghti & Baghti and Ors(No.2) [2014] FamCAFC 204 in the context of an application to reopen an application.
Orders sought by the applicant in the application in the case
The parties entered into consent orders on 25 March 2015 which should be dealt with orders 2 to 4 of the orders sought by the husband and order 14 by the wife in her response. These orders relate to the sale of properties and partial property settlement from the proceeds of sale of those properties.
Child support
Order 7 of the husband’s application in the case he seeks a stay of the collection and law enforcement of child support. The husband’s supporting affidavits is completely silent on the issue. There is no child support issue before the court. I need not comment further on this aspect of the husband’s application except to say this aspect of his application must be dismissed.
Maintenance
In order 5 the husband seeks periodic interim maintenance in the sum of $750 a week. The husband did not file a financial statement in support of his application until 16 February 2015. He provides no explanation for this delay given that he was seeking interim maintenance. He should have filed his financial statement at the same time as the application in the case. As it stands the wife filed her response and affidavit on 13 February 2015 before the husband’s financial statement was filed.
The history of the matter with respect to maintenance is of significance here. The husband has not sought interim maintenance previously although he has alluded to the possibility of seeking maintenance at some point.
The husband first referred to the possibility of his seeking maintenance in his affidavit sworn and filed on 15 May 2014 at paragraph 223. This was only a few days before the final hearing was due to commence. I listed the matter for directions on 16 May 2015 because of non-compliance with trial directions. On that occasion the wife’s counsel complained about the husband seeking to raise maintenance at that late stage. The husband’s counsel said this was an issue that had only arisen recently, due to the husband’s (occupation omitted) contract coming to an end. The wife complained that the issue was not new but newly raised. Husband’s counsel conceded that the maintenance application could not be run at the final hearing the following week.
Principles applying to applications to reopen and adduce further evidence
Whilst the husband has not formally closed his case as he is yet to cross-examine the family consultant, the husband’s financial case has finished except for the tendering of documents and submissions. Berman J expressed the view in Jackson & Shea [2013] FamCA 692 that an application to reopen a case or adduce further evidence is a distinction without a difference. I agree with that view.
This is not a case where the husband has raised the issue at the earliest opportunity. The husband was already allowed to adduce further evidence as to his changed financial position and job prospects before the resumption of the hearing in November 2014.
If the application to re-open is to call evidence which was not called earlier as a result of deliberate tactical decision by counsel and not an omission or a new circumstance that fact will be relevant to the Court’s exercise of discretion: Smith v New South Wales Bar Association (No.2) (1992) 176 CLR 256. The wife argues that it was a deliberate tactical decision by the husband’s counsel and therefore he should not be allowed to reopen the case.
The orders the husband seeks do not clarify his position but it seems from his submissions that the husband is in effect seeking to adduce further evidence. Both parties completed their evidence and the financial aspects of the hearing concluded with the only outstanding evidence being that of the family consultant.
Significantly the husband seeks to adduce further evidence but does not specify what that evidence will be, how that will impact on the further conduct of the hearing and does not specify the minutes of order he now seeks and how that differs from the orders sought at the commencement of the trial. The property aspects of both parties’ cases, except for final submissions, has concluded. Both parties and their supporting witnesses have concluded giving their evidence. The only outstanding witness is the family consultant.
The court has a discretion as to whether or not to permit a party to adduce further evidence or reopen the case. In exercising that discretion a relevant consideration for the court is the interest of justice. See Urban Transport Authority (NSW) v NWEISER (1992) 28 NSWLR 471. The interests of justice involves a consideration of any prejudice to the parties but also another highly relevant factor in my view is the impact that the application may have on the case management of the court and the potential delay might cause to other cases. See Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 5 August 2009 C1/2009.
If the husband is permitted to adduce further evidence, in effect reopening his case, then presumably the husband would need to put on further evidence and be subjected to further cross-examination. It may well be the wife would seek to file an updated financial statement which would include part N of the financial statement which she has not previously had to complete as that is only necessary when maintenance is an issue. The husband may then seek to further cross-examine the wife. These actions will necessarily add to the costs of both parties and an extension of court time. The husband’s submissions do not address this which is relevant to my exercise of discretion.
It is clear from the husband’s written submissions that he is asserting that there has been a change of circumstances and that the interests of justice requires the court to be informed of that change of circumstance. The wife refutes this in her submissions and helpfully pointed out where in the evidence the issue of maintenance has been previously identified.
A significant factor in my consideration of the issue is the fact that the husband has already given evidence about his changed employment system circumstances and has been cross-examined on this issue. I do not accept the husband submissions that is not possible for the court to determine the Justice and equity of the property orders unless the husband is permitted to give further evidence.
The other factor of great significance is the fact that the husband will not be prevented from seeking maintenance after the property proceedings has been completed if he still has a need for maintenance after the hearing. On the husband’s case according to the balance sheet he handed up at the hearing, the net pool of assets is over $3,000,000. The parties divorce became final on 20 November 2014.
With respect to the application for interim maintenance in light of the consent orders made on 25 March 2015 and as indicated in the wife’s submissions in reply, the husband’s financial circumstances have changed such that it would be necessary to have further evidence before the court, given the sale of the property the discharge of mortgages and the subsequent reduction in the husband’s expenses. This would involve needing to have a further interim hearing with the parties putting on further material in circumstances where the consent orders provide partial settlement to the parties.
This would involve further costs to the parties and would not be a good use of court resources. This particularly so given the hearing will now resume in less than two weeks.
For these reasons I dismiss the outstanding aspects of the husband’s application in a case. The husband was also seeking further discovery documents. Neither agitated this issue in the submissions and I will assume the parties have sorted this issue and. I will reserve the issue of cost of the trial.
When the matter was last in court the parties agreed that the remainder time of trial could be conducted with me being in Melbourne by video link. Due to the Darwin Court moving premises it is not possible to list this matter in June. It is also not possible to list the matter in July because the wife’s counsel will be overseas. Although the parties are receiving short notice of the resumption of the hearing the only other date I can accommodate without the matter being delayed until at least August is 14 May 2015. As I am not allowing the parties to adduce further evidence the matter should be largely ready in any event.
For these reasons I make the orders which appear at the beginning of this judgment.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 7 May 2015
0
5
2