Morris and Stollier

[2009] FamCA 955

FAMILY COURT OF AUSTRALIA

MORRIS & STOLLIER [2009] FamCA 955

FAMILY LAW – EVIDENCE - Application by the wife for her mother to give evidence at the final hearing by telephone - Proceedings are listed for final hearing in Newcastle and the wife’s mother lives in Adelaide - Wife’s mother is 86 years old - Application is unsupported by independent medical evidence - Wife’s application is dismissed and costs are reserved until the final hearing

Family Law Act 1975 (Cth)

APPLICANT: Mr Morris

RESPONDENT: Ms Stollier

FILE NUMBER: NCC 3682 of 2007

DATE DELIVERED: 7 September 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 7 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Olsen, Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Mr Sullivan, Mullane & Lindsay

Orders

(1)The oral application made by the respondent wife for the wife’s mother to give evidence in these proceedings by way of telephone is dismissed.

BY CONSENT

(2)Leave is granted to the respondent wife to issue subpoenae to the following persons or entities:

(a)       C Accountants;

(b)       B Business Advisors; and

(c)       Ms H

(3)The applicant husband is to produce to the solicitors for the respondent wife, within seven days of the date hereof, all financial statements prepared periodically by or on behalf of the husband for the following persons and/or entities:

(a)       The husband;

(b)       Morris Entities; and

(c)       Morris Pty Limited.

(4)The husband shall file and serve an updating Financial Statement by Friday, 11 September 2009.

NOTATION

A.The question of costs in relation to the application made by the respondent wife for the wife’s mother to give evidence in these proceedings by way of telephone is reserved until the final hearing.  The Court will have regard to the ultimate outcome of the proceedings when considering the issue of costs.

IT IS NOTED that publication of this judgment under the pseudonym Morris & Stollier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER:  NCC 3682 of 2007

MR MORRIS

Applicant

And

MS STOLLIER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1.Before the court for determination this morning, on an interlocutory basis, is an application by the respondent wife to permit one of her witnesses, being the wife’s mother, to be able to give her evidence in cross-examination by way of telephone from her home in Adelaide. That application is resisted by the husband.

2.The evidence of the wife’s mother goes to the singular issue of ownership of a series of artworks.  As I understand the common position of the parties, those artworks rest in the possession of the respondent wife, but the wife’s mother asserts that she holds legal and equitable interest in the artworks.

3.The applicant husband in these proceedings contends that, in fact, the legal and/or equitable interest in those artworks rests with the respondent wife and ought form part of the pool of property available for distribution between the parties in the section 79 property adjustment proceedings pending between them.

4.The reason for the contended inability of the wife’s mother to attend court for cross-examination is, principally, her advanced years.  I understand that she is approximately 86 years of age, has recently endured a fall, and has some degree of apprehension about travelling from South Australia to New South Wales for the purposes of giving evidence.

5.The application for her to be cross-examined by way of telephone, at this point at least, is unsupported by independent medical evidence.

6.The applicant husband asserts that because the piece of evidence given by the wife’s mother is influential in the outcome of the proceedings, and that her cross-examination will involve an issue of credit, it is important that she be personally present for that cross-examination.

7.I have reservations about the importance of the issue to the overall proceedings, given that the artworks which are the subject of the evidence are valued at approximately $65,000 and the parties agree that the net pool of property is worth a little in excess of at least $3 million, and perhaps as much as $4 million.

8.Attempting to do justice between the parties, it is my view that, on the current state of the evidence, the wife’s mother should be available to give her cross-examination in person, but that if the applicant husband’s resistance to her being able to give evidence by telephone is subsequently seen to lack merit, there will likely be costs consequences for him.

9.The solicitor for the respondent wife has foreshadowed the possible renewal of the application for the witness to be cross examined by telephone in the event that compelling medical evidence is available.  The absence of availability of that evidence at the moment is the ultimate reason for my decision to refuse the application.

10.For those reasons I dismiss the oral application for the wife’s mother to give her evidence in these proceedings by way of telephone.  I reserve the question of costs in relation to that unsuccessful application to the final hearing, and I note that the court at the final hearing will consider the issue of costs associated with ensuring the personal attendance at the hearing of the wife’s mother, having regard to the ultimate outcome of the proceedings.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  2 October 2009