Marley & Ormonde & Ors (No 2)

[2020] FamCA 798

FAMILY COURT OF AUSTRALIA

MARLEY & ORMONDE AND ORS (NO. 2) [2020] FamCA 798

FAMILY LAW – EVIDENCE – Where an Application is made for leave to rely on evidence of a witness that has not provided an Affidavit – Where Orders were made on 12 May 2020, prior to the hearing of this matter, for any Affidavits that the parties intend to rely upon to be filed and served within 49 days of the date of those Orders – Where proof of evidence was provided to the other parties outside of the timeframe pursuant to the trial directions made on 12 May 2020 – Consideration given to whether there is good reason for non-compliance with Orders made by the Court – Application dismissed.

Family Law Rules 2004 (Cth) rr 11.02, 11.03(2)

APPLICANT: Ms Marley

FIRST RESPONDENT: Mr Ormonde

SECOND RESPONDENT: Ms Ormonde

THIRD RESPONDENT: Mr B Ormonde

FILE NUMBER: SYC 3012 of 2018

DATE DELIVERED: 17 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 17 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Guterres

SOLICITOR FOR THE APPLICANT: MistryFallahi Lawyers & Business Advisors

SOLICITOR FOR THE FIRST RESPONDENT: Mr Brown of Browns the Family Lawyers

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Mr Kaufmann

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: Leigh Johnson Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marley & Ormonde 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 3012 of 2018

Ms Marley

Applicant

And

Mr Ormonde

First Respondent

And

Ms Ormonde

Second Respondent

And

Mr B Ormonde

Third Respondent

REASONS FOR JUDGMENT

1. This decision concerns an Application by Ms Marley (“the Applicant wife”) for leave to rely upon the evidence of a witness, Ms H, despite Ms H not having sworn an Affidavit in these proceedings. In that respect, counsel for the Applicant wife contends that a subpoena has been issued to Ms H for her to attend the hearing to give evidence and that Mr Ormonde (“the First Respondent husband”), Ms Ormonde (“the Second Respondent”) and Mr B Ormonde (“the Third Respondent”) have been provided with proof of Ms H’ anticipated evidence. According to evidence led from the bar table, that proof of evidence was served on the First Respondent husband and the Second and Third Respondents in draft form on 6 August 2020 and in final form on 13 August 2020.

2. The Court has been informed that the evidence of Ms H relates to an email that was sent on 28 August 2018.

3. Orders were made on 12 May 2020 providing for the parties to file any Affidavits that they wished to rely upon for the purpose of these proceedings within 49 days of the date of those Orders. In circumstances where the Applicant wife seeks to rely on evidence from Ms H, which has been included in a proof of evidence provided in final form on 13 August 2020, it is incumbent upon the Applicant wife to satisfy me that relief from the operation of r 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”) should be granted.

4. Rule 11.03(2) of the Rules provides that, in terms of considering the issue as to whether relief should be granted, the Court may consider whether there is good reason for the non-compliance. I do not have before me evidence establishing that there is good reason for the non-compliance with the trial directions. The Applicant wife was clearly in a position to serve that evidence in accordance with the prescribed timetable.

5. The First Respondent husband and the Second and Third Respondents object to the evidence on the basis that they would be prejudiced as a result of having insufficient time to make their own inquiries and researches in respect to the evidence. In those circumstance, I am not satisfied that relief from the operation of r 11.02 of the Rules is appropriate or justified or in the interests of justice. Accordingly, I do not grant relief pursuant to rule 11.03. As it has not been served in accordance with the trail directions, the proof of evidence of Ms H cannot be accepted into evidence

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 17 August 2020.

Associate: 

Date:  23 September 2020