M and M

[2004] FamCA 1374

[2004] FamCA 1374

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY  No. SYF.3426 of 2003

IN THE MATTER OF:	M	M	Wife
AND	M	HD	Husband

REASONS FOR JUDGMENT

CORAM:	Justice Rowlands
DATE OF HEARING:	19 August 2004
DATE OF JUDGMENT:	24 August 2004

APPEARANCES:

MR MILLAR	of Counsel, instructed by Dimocks Family Lawyers (DX 197 Sydney) appeared on behalf of the wife.
MR RICHARDSON SC	of Senior Counsel, instructed by Barkus Edwards Doolan (DX 11561 Sydney Downtown) appeared on behalf of the husband.

Catchwords

EVIDENCE     -   Affidavit

-   Tender of opponent’s affidavit

-   Examination-in-chief

Legislation considered

Evidence Act 1995 (Cth)

Family Law Rules 2004 (Cth)

Cases considered

Leaders Shoes (1967 86 WN (Pt 1) (NSW) 388

1. This is an evidentiary ruling in the course of a property dispute between the parties under the Family Law Act 1975.

2. The wife's mother swore an affidavit on 2 May 2003 in support of the wife's case.  She is unlikely to be available for cross-examination through illness but I received her affidavit into evidence on terms that it would be read by me, constantly reminding myself that it had not been subjected to the testing process of cross-examination.  That is, I would read it critically.  Various paragraphs were successfully objected to by senior counsel for the husband and they have been struck out.  Counsel for the wife said he did not read, that is seek to adduce as part of the evidence, paragraph 17 of the affidavit.  Counsel for the husband now seeks to tender this paragraph as part of the evidence in the case.  Paragraph 17 reads as follows:

   “Altogether I estimate [B] and I gave [M] approximately $315,000 with which to buy the [eastern Sydney] property and build a new home there. ”

3. M is the wife in the proceedings and B the late husband of the deponent and father of the wife.  The wife’s parents lived with the parties in eastern Sydney during the course of the marriage. 

4. In proceedings in this jurisdiction, an affidavit of this nature plays the part of examination-in-chief.  The party who "calls the witness" or relies on the affidavit controls the content of the material presented.  The witness, whose evidence is on affidavit, is then, in the normal case, subject to cross-examination by the other party.  Here, as indicated, that will not take place. 

5. The issue is whether I should receive paragraph 17 on the application of counsel for the husband where:

   (a)Counsel for the wife does not seek to adduce the evidence from his witness, and

   (b)Objects to any tender of paragraph 17 or the receipt of it into evidence.

6. It is clear to my mind that no case has been made out that paragraph 17 in some way qualifies other evidence from the deponent in her affidavit.  That is to say, it cannot be properly contended that in this case where the deponent will not be cross-examined, paragraph 17 assists the Court in a proper appreciation of other matters within the document which are before the Court.  Justice does not require that paragraph 17 be before the Court to qualify other matters in the affidavit which are presently part of the evidence.

7. It now seems the parties accept that s 81 of the Evidence Act is not applicable to the situation.

8. The wife's mother's statements are not capable of being viewed as admissions of a party, that is, the wife. 

9. In the normal situation, counsel for a party may determine the areas of evidence which may be adduced from his or her witness whether the evidence be oral or in the written form.  Should the situation be different here?  The rules of Court tend to support the analogy of which I have earlier spoken.  Rule 15.05(i) evidence-in-chief by affidavit is in this form:  “Evidence-in-chief at a hearing or trial must be given by affidavit” (the remainder of the provision does not assist). 

10. There is no requirement apparent in the rules for a party to use or introduce into evidence a filed affidavit.  Indeed, rule 15.06(i) is permissive in tone, upon conditions of filing and service, it states:

    “An affidavit may be relied on at a hearing or trial only if it is filed and served in accordance with these rules or an order.”

11. Further, rule 15.06(iii) disciplines usage saying:

    “An affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed.”

12. In the Leaders Shoes Case (1967) 86 Weekly Notes, Part 1 New South Wales 388, McFarlane J was sitting in the Commercial Causes Court which had a power to order evidence on affidavit.  This was not, at least then, a common law norm.  His Honour held that a party who files an affidavit is not obliged to read it.  This appears consistent with the rules of the Family Court.  Further, his Honour held:

    “That an affidavit made by a person who is not a party, which has not been read in the case of the party who filed it, cannot be tendered against the party.”

13. Leaving aside entirely the case where a partial reading provides an incomplete coverage of the witness's evidence on a particular matter, where justice requires the full picture, I find some assistance in an analogy with the circumstances here and those in the Leaders Shoes Case. 

14. In Halsbury's Law of Australia, Volume 13, paragraph 195-8830 on evidence given by affidavits, the learned authors say:

    “The requirement by the rules or by an order that affidavits be filed and served is a condition precedent to their becoming part of the evidence subject to any dispensation which may be made.  The filing and service of affidavits does not make them part of the evidence before the Court.  When an affidavit is read to the Court it becomes, subject to any rulings on admissibility, part of the evidence.  There is no obligation on a party to read an affidavit which has been filed.”

15. I am, then, inclined to allow counsel for the wife not to read paragraph 17 and not allow the paragraph to be tendered on behalf of the husband. 

16. This approach is reinforced when I examine the contents of paragraph 17.  One cannot say it does not deal with relevant or potentially relevant matters in this matrimonial property case.  However, it lacks particulars, is very general and ambiguous.  It is clearly bad as to form and potentially dangerous, particularly if untested by examination of the witness.  As the deponent is not available for examination, the prospect of it being remedied is not there. 

17. Further it appears to me that the paragraph 17 may fall foul of s 135 of the Evidence Act. Section 135 is in these terms:

    “The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

    (a)     Be unfairly prejudicial to a party or

    (b)     Be misleading or confusing or

    (c)     Cause or result in undue waste of time.”

18. As I understand it, the husband seeks to present an argument based on paragraph 17 that the wife has a beneficial interest in the eastern Sydney property beyond the 50 per cent interest both parties concede they have.  Because of its general and ambiguous nature and its lack of particulars paragraph 17 is dangerous in its potential to mislead, confuse and also to unfairly prejudice a party.

19. For all of these reasons the paragraph will not join the evidence.  The fact that its inclusion may trigger a joinder of other parties, merely on a prospect, and also cause undue waste of time is not a factor I rely upon.

I certify that this and the preceding 3 pages is a true copy of the Reasons for Judgment herein of Justice Rowlands.

Associate