MONACO and DANIELS - [2014] FCWA 34

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MONACO and DANIELS [2014] FCWA 34

CORAM: WALTERS J

HEARD: 28 MAY 2014

DELIVERED : 28 MAY 2014

PUBLISHED : 3 JUNE 2014

FILE NO/S: PTW 292 of 2008

BETWEEN: MR MONACO
Applicant
AND
MS DANIELS
First Respondent
AND
MR HIGGS
Second Respondent

Catchwords:

FAMILY LAW – EVIDENCE – where the wife’s counsel seeks leave to recall witness for further cross-examination – self-represented litigant who subsequently briefed counsel – cross-examination by more than one counsel – principles – judicial discretion

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms K Everett
First Respondent : Mr W Meredith
Second Respondent : Self Represented Litigant
Independent Children's Lawyer : Mr J Pacy

Solicitors:

Applicant: W L & K J Everett
First Respondent : William Llewellyn Meredith
Second Respondent :
Independent Children's Lawyer : Pacy Solicitors

Case(s) referred to in judgment(s):

R v Gassy (No. 3) (2005) 93 SASR 454
Searle v Keayes (1994) 126 ALR 728
Slick v Westpac Banking Corporation [2006] FCA 1712

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1Before the Court is Ms [Daniels’] application in a case filed 22 May 2014. She seeks orders granting her legal representative, Mr Meredith, leave to recall the applicant and the second respondent for further cross-examination. Originally, the single expert, Professor Lipton, was included in the orders sought but Mr Meredith has indicated today that he is not pressing for the recall of Professor Lipton.
2The law in relation to such applications was summarised by Tamberlin J in Searle v Keayes (1994) 126 ALR 728. The factual situation in Searle v Keayes was not dissimilar to that currently before the Court. Reading from the headnote, the factual circumstances were as follows:
The first respondent was unrepresented during the first five days of proceedings between the applicant, the first respondent and others. During this period, the first respondent, in person, cross-examined a number of witnesses called by the applicant. The cross-examination was completed. The first respondent subsequently obtained legal assistance. Counsel for the first respondent applied for the recalling of the applicant and a witness who gave evidence on behalf of the applicant for further cross-examination. Counsel for the first respondent argued that cross-examination of these witnesses by the first respondent had not been adequate.

3Tamberlin J said (on p 729):
The principles that guide the Court in circumstances such as the present are well known. One important consideration is that litigation must be resolved and not be the subject of continuous reopening and prolongation. The second matter is that there has been a long tradition that only one counsel should question during a single stage in the examination of a single witness.
As Wigmore points out, this tradition rests on the wise policy of protecting the witness from undue and confusing interrogation as well as securing system and brevity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MONACO and DANIELS

Details

AGLC: Monaco and Daniels [2014] FCWA 34
Case: [2014] FCWA 34
Decision Date: 28 MAY 2014

CaseChat Overview and Summary

Monaco and Daniels involves a dispute in family law, where the wife, who initially appeared self-represented, later briefed counsel to assist in the proceedings. The primary issue before the court was whether leave should be granted to recall a witness for further cross-examination. This was particularly complicated by the fact that the witness had already been cross-examined by both the self-represented litigant and the subsequently briefed counsel. The court had to navigate the principles governing the recall of witnesses in family law matters, particularly in cases where the self-represented litigant has been replaced by counsel.

The legal issues centred on the appropriate exercise of judicial discretion in permitting the recall of a witness and the potential impact on the fairness and efficiency of the proceedings. The court considered whether the initial cross-examination was adequate and whether the subsequent briefing of counsel necessitated further examination to ensure a just outcome. The court also had to weigh the interests of both parties, including the potential prejudice to the opposing party if the witness was recalled.

In its reasoning, the court emphasised the importance of judicial discretion in determining whether to grant leave to recall a witness. The court examined the adequacy of the initial cross-examination, the necessity of further examination by the new counsel, and the overall fairness of the proceedings. Ultimately, the court found that the initial cross-examination was sufficient, and granting leave to recall the witness would not serve the interests of justice or procedural fairness. The court decided that the wife’s counsel would not be permitted to further cross-examine the witness.

As a result of the court's decision, the wife’s application to recall the witness for further cross-examination was dismissed. The court's ruling underscores the importance of ensuring that the initial cross-examination is thorough and that further examination should only be permitted if there are compelling reasons to do so, particularly in cases involving family law disputes.

Orders