Murray and Murray (No 2)
[2019] FamCA 846
•18 November 2019
FAMILY COURT OF AUSTRALIA
| MURRAY & MURRAY (NO. 2) | [2019] FamCA 846 |
| FAMILY LAW – APPLICATION TO RE-OPEN – Where the wife seeks to re-open final property proceedings to adduce further evidence after judgment has been reserved – Where the new evidence is so material that the interests of justice require its admission – Where, if accepted, the new evidence would most probably affect the result and could not by reasonable diligence have been discovered earlier – Where any prejudice or embarrassment that the husband might suffer by reason of the new evidence being admitted is not a weighty consideration given the nature of the evidence – Where the wife is granted leave to be able to adduce further evidence. |
| Family Law Act 1975 (Cth) |
| Black & Kellner (1992) FLC 92-287 Reid v Brett [2005] VSC 18 Weir and Weir (1993) FLC 92-338 |
| APPLICANT: | Ms Murray |
| RESPONDENT: | Mr Murray |
| FILE NUMBER: | SYC | 5665 | of | 2014 |
| DATE DELIVERED: | 18 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 28 October 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lynch, counsel |
| SOLICITOR FOR THE APPLICANT: | Pearson Emerson Meyer Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
Orders
As per Order 2 made 28 October 2019
In the wife’s Application in a Case filed 23 September 2019, leave be granted to the wife to reopen the case and adduce the following further evidence:
a)The statement of Mr R provided NSW Police Force on 21.11.18 which has been marked Exhibit 55;
b)The transcript of criminal proceedings in the …, pages 298 – 344 which is Exhibit 54;
c)The oral evidence of Mr R given on 28 October 2019 in the Application in a Case.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Murray & Murray 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 5565 of 2014
| Ms Murray |
Applicant
And
| Mr Murray |
Respondent
REASONS FOR JUDGMENT
On 28 October 2019, I made the following orders:
1. A certificate pursuant to s 128 be given to Mr R for the evidence he has given in court in these proceedings today.
2.In the wife’s Application in a Case filed 23 September 2019, leave be granted to the wife to reopen the case and adduce the following further evidence:
a)The statement of Mr R provided NSW Police Force on … 2018 which has been marked Exhibit 55;
b)The transcript of proceedings in a jury trial, pages 298 – 344 which is Exhibit 54;
c)The oral evidence of Mr R given on 28 October 2019 in the Application in a Case.
3.My reasons for making order 2 above are reserved.
4.By 4 pm 1 November 2019, the wife file and serve written submissions as to how the further evidence might affect the result she had previously sought.
5.By 4pm 8 November 2019, the husband file and serve written submissions as to how the further evidence might affect the result he had previously sought, including responding to any submission made by the wife.
6.By 4pm 15 November 2019 the wife file and serve any submission in reply.
Pursuant to Order 3, I now provide those reasons.
Background
On 23 September 2019, the wife filed an Application in a Case seeking leave to re-open the case and to adduce further evidence in the substantive proceedings. At that stage, the wife was not actually in possession of the evidence upon which she hoped to rely but sought leave to issue subpoenas in order to obtain that evidence. Annexed to her affidavit in support of her application was information she discovered, which contained reports potentially relevant to the final property proceedings.
On 11 October 2019, I adjourned the wife’s application part heard and made orders based on ex tempore reasons given on that day. Those orders included:
(1)At 10 am on Monday 28 October 2019, Mr R attend the Family Court of Australia, 97-99 Goulburn St, Sydney 2000, Court … to give evidence and produce any documents he retains in his control relevant to the cash deposits made by him on behalf of the husband including a copy of any statement, answers or information he provided to the Police or any investigation related to those deposits;
(2)On or before Monday 21 October 2019, the Australian Federal Police and the NSW Police Force produce to the Court:
2.1 A copy of any statement made by Mr R relevant to cash deposits of almost $1 million made by him in amounts of less than $10,000 at bank branches in NSW, Victoria and Queensland during 2016; and
2.2 Any other document relating to the cash deposits by Mr R referred to in 2.1.
which is in their possession or control.
…
(5)The Registrar is requested to urgently obtain a transcript of Mr R’s evidence on … during a criminal trial;
Pursuant to the Order 1, Mr R attended Court and was cross examined by counsel for the wife and was asked questions by the husband. Further, pursuant to Order 5, the Registrar obtained a copy of the transcript of Mr R’s evidence given in criminal proceedings. I marked that document Exhibit 54.
Having read Exhibit 54, it became clear that the Crown Prosecutor in that criminal trial had a statement of Mr R dated … 2018 and produced under subpoena by the NSW Police. On 24 October 2019, I made an order in chambers requesting the Registrar to obtain a copy of that statement. Later that day, the statement was obtained, marked as Exhibit 55 and provided to the parties electronically.
By the time of the hearing of the application on 28 October 2019, the wife sought to re-open her case to specifically adduce the following further evidence:
a)The transcript of proceedings in the jury trial …, pages 298 – 344 (Exhibit 54);
b)The statement of Mr R provided NSW Police Force on … 2018 (Exhibit 55); and
c)The oral evidence of Mr R given on 28 October 2019 in the Application in a Case.
The wife also wished to submit an aid memoire which became Exhibit 59 which detailed the deposits already in evidence at branches nominated by Mr R at paragraph 17 of his police statement.
The husband opposes the application to re-open the case and complains that he has continued to be disadvantaged by the matter not finalising.
The police statement (Exhibit 55)
A number of assertions (most of which are accepted by the husband) arise from Mr R’s police statement which includes that:
a)Mr R is a long time close friend of the husband who is currently employed as an apprentice with Y Company;
b)Mr R acted as an agent for the husband in the money laundering activity. In general terms, it is now uncontroversial that in around January or early February 2016, Mr R deposited $550,000 in cash into accounts nominated by the husband on the husband’s behalf and about 4 to 6 months later (April 2016 – August 2016), he deposited about $350,000 to $400,000 in cash, again into accounts controlled by the husband on the husband’s behalf;
c)Mr R asserts that the husband said to him, in respect of the January/early February cash deposits totalling $550,000, “Make sure you keep it under $10,000 at a time” (paragraph 6) and “[The husband] made a point in telling me to keep each transaction under $10,000 so it didn’t set off any alerts” (paragraph 8). This information is relevant to the consideration of the husband’s credit, given, that during the trial he protested he had no understanding as to why a large number of deposits of just under $10,000 had been made;
d)Mr R indicated, in respect of the second tranche of cash deposits of $350,000 to $400,000, that he was “pretty sure” that on this occasion the husband had given him a Westpac BSB and account number into which he deposited cash (paragraph 21). This being relevant as there was no evidence at the final hearing of a Westpac account into which cash deposits have been made; and
e)When commenting upon whether or not Mr R had been involved in money laundering activities, he indicated that he thought that the husband may have just been hiding money from his wife due to the divorce (paragraph 24).
Further, at paragraph 17 of the statement, Mr R says:
I would use the following branches: [12 locations] and some other places I can't remember exactly. The branches and ATM's may not have been in those exact suburbs but they would have been close to those suburbs.
All of these branches, except Suburb BG, are locations in respect of which there was evidence at the final hearing. I am generally satisfied that the summary in the aid memoire (Exhibit 59) accurately records the evidence of deposits into the named branches and that of the bank statements which record the locations of deposits made by Mr R. The deposits into the branches nominated by Mr R account for only a small percentage of the $900,000 - $950,000 cash deposits on which statements from financial institutions evidences cash deposits. That said, the NAB account statements which record multiple and significant cash deposits do not record which locations were used.
Evidence given by Mr R in the criminal trial (Exhibit 54)
The evidence Mr R gave in the criminal trial provided little additional information but the following passages are relevant:
Q. [The husband] made a point of telling you to keep each transaction under $10,000 so it didn’t set off any alerts, is that right?
A. Yes.
Q. And he told you to be careful and to get it done as soon as possible?
A. Yes.
Q. You told police that you weren’t really sure what [the husband] meant when he said “alerts”?
A. Yes.
Q.You told police that you thought from your experience at the club, that it's important to keep transactions under $10,000, you don’t raise any red flags with the ATO?
A. Yes.
…
Q.You know that he banks trace deposits of $10,000 and over, didn’t you?
A. Yes.
(Transcript 317, lines 15 - 36)
Q.[The husband] had also told you something about not depositing too much into the National Australia Bank account, right?
A.I was it was the Westpac one but yeah, yeah, yeah, he told me not to deposit one - not too much into one, one of them particular, yes.
Q.[The husband] had also told you something about not depositing too much into the National Australia Bank account, right?
A.I was it was the Westpac one but yeah, yeah, yeah, he told me not to deposit one - not too much into one, one of them particular, yes.
(Transcript page 318, lines 29 - 32)
Q.… The simple fact is, you were money laundering for [the husband], weren’t you?
A. No.
(Transcript page 22, lines 23 -25)
Q.And that you thought that [the husband] might have been trying to hide the money from his wife due to a divorce?
A. Yes.
…
Q.You didn’t think there was anything wrong about an accountant giving you hundreds of thousands of dollars of cash in a supermarket cooler bag or bags?
A. No.
Q.And then asking you to deposit that money in different bank accounts in amounts under $10,000?
A. Yeah, sorry, what was your question again?
Q. You didn’t think there was anything wrong with that?
A.No. It's his money, I - just helping him. He doesn’t want his wife to get the money, that's his business. I was just helping my friend, that's all I was doing.
(Transcript page 324, line 42 to page 325, line 9)
Q.To your mind, why do you say that it's not money laundering, why do you say that? Is that something to do with the source of the cash or something?
A. Well he was just hiding the money from his wife that's all.
(Transcript page 326, line 7 to line 9)
Mr R’s oral evidence – 28 October 2019
Counsel for the wife was given the opportunity to cross examine Mr R regarding the evidence he gave in the criminal proceedings and the police statement. The wife sought that that oral evidence also be admitted as evidence in the final property proceedings.
Overall, the wife wishes to rely upon Mr R’s oral evidence to establish the following:
a)Mr R and the husband have had conversations about the property settlement proceedings including the husband telling him that he was offering 100 per cent of the assets to the wife, but she wanted more;
b)The husband, at no stage, indicated to him that the $950,000 was not the husband’s money; and
c)As a result of his associations and conversations with the husband, Mr R, at all times (apart from in his oral evidence on 28 October 2019) asserted that this was the husband’s money.
Conclusions in relation to those assertions and an assessment of Mr R’s credit as a witness should await the final Reasons for Judgment.
Discussion
Relevantly, in Reid v Brett [2005] VSC 18, Habersberger J said that:
41.The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:
(a)the further evidence is so material that the interests of justice require its admission;
(b)the further evidence, if accepted, would most probably affect the result of the case;
(c)the further evidence could not by reasonable diligence have been discovered earlier; and
(d)no prejudice would ensue to the other party by reason of the late admission of the further evidence.
…
(Footnotes omitted)
Is the evidence so material that the interest of justice require its admission?
The evidence which the wife seeks to adduce could be relevant in the following ways:
a)The wife wishes to argue that an amount of $950,000 should be added onto the balance sheet as a result of the new evidence. Submissions in that regard could potentially be developed in final submissions upon the adducing of further evidence. If those submissions were successful, that amount would be placed upon the balance sheet;
b)At the trial, the wife relied upon the principles in Black & Kellner (1992) FLC 92-287 and Weir and Weir (1993) FLC 92-338. The new evidence adds to the evidence the wife might rely upon going to the husband’s alleged lack of full and frank disclosure; and
c)The new evidence may add to the evidence the wife relies upon going to the husband’s credibility.
I conclude that the potential evidence may well be so material that the interest of justice require it to at least be obtained.
If the further evidence was accepted, would it most probably affect the result of the case?
I find that it is most probable that if the further evidence was accepted, it would affect the result of the case in any of the three potential ways set out above.
Could the further evidence had been discovered earlier by reasonable diligence?
The answer to that question is obviously no. The husband had not disclosed the involvement of Mr R. The wife has only become aware of this further line of inquiry as a result of reading the information discovered.
Would prejudice ensue to the husband by reason of the late admission of evidence?
I find that any prejudice or embarrassment occasioned to the husband as the result of a successful application to lead further evidence is not a weighty consideration given the nature of the evidence which the wife seeks to adduce. Although it needs to be acknowledged that the effect of the wife’s application is to increase delay and possibly stress on the husband, that is not a matter to which I give significant weight given the nature of what the wife seeks to put into evidence.
Ultimately, any financial prejudice which the husband might establish can be covered by an order for costs against the wife if that becomes appropriate.
Conclusion
Consequently, in order for the Court to do justice in the facts and circumstances of this particular case, the wife’s application to re-open the case to adduce the specific evidence as set out above should be granted.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 November 2019.
Associate:
Date: 18 November 2019