Naisby & Naisby
[2024] FedCFamC1F 39
•5 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Naisby & Naisby [2024] FedCFamC1F 39
File number(s): BRC 4847 of 2016 Judgment of: JARRETT J Date of judgment: 5 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Tender of documents after re-examination conference Division: Division 1 First Instance Number of paragraphs: 9 Date of last submission/s: 2 February 2024 Date of hearing: 17-18 January 2024 Place: Brisbane Solicitor for the applicant: By written submission Solicitor for the respondent: By written submission ORDERS
BRC 4847 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR NAISBY
Applicant
AND: MS NAISBY
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
5 FEBRUARY 2024
NO ORDERS MADE
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This trial has endured a tortuous course. For much of the trial the applicant was self‑represented. She has now taken on legal representation. The respondent has always been self-represented.
The applicant engaged lawyers part way through her cross-examination. When that cross‑examination was completed, I offered her counsel the opportunity to confer with the respondent for the purposes of determining if there should be any re-examination. Counsel and the respondent took up that opportunity. Having conferred, I have been informed that there is to be no re-examination.
However, the respondent (by her counsel) wishes to tender three documents upon which she had cross-examined the applicant. I will consider each of the documents separately but first, the applicant objects generally to the tender of the documents on the basis that the request to tender the documents follows upon the conference between counsel and the respondent in circumstances where the purpose for the conference was to enable counsel to decide if it was to be any re-examination of the respondent.
There is no substance in this objection. It is entirely artificial to think that in determining whether to lead any further evidence from the applicant in re-examination, counsel would not have reviewed the transcripts of the trial, including the documentary evidence that had been tendered during the course thereof. Whether the decision to attempt to tender the relevant documents was as a result of the conference with the respondent or otherwise is frankly, neither here nor there. Apart from anything else, it is commonplace for parties before the close of their case to tender documents that through oversight, were not tendered at the time of cross‑examination.
The applicant also suggests that, having taken advice on the matter, the respondent “does not have the capacity to tender documents associated with the cross-examination of my witness in September, 2023”. I do not understand this submission and in any event, it is not correct.
The first document the respondent seeks to tender is described as “New Broker Notes” created by a person identified in the evidence as Mr UU. The respondent’s partner Ms O was cross‑examined about this document. She was not its author but she was cross-examined about notations made by Mr UU which purported to record things said to him by the applicant and Ms O. As to the matters recorded in the document Ms O’s evidence was that although she could not remember saying the particular words put to her from the document, she agreed that it “probably was what we told him”. The statements recorded by Mr UU in the “New Broker Notes” have the potential to amount to statements against interest by the respondent and Ms O. The document will be admitted and marked Exhibit 48.
The second document is described as an “excerpt of Statement 1 for account ending [#...42]”. The respondent cross-examined Ms O about this document but it is apparent from her cross‑examination that the document was a document that was annexed to Ms O’s affidavit of evidence-in-chief as part of annexure MO07. A separate tender of the document is not therefore required. It is already in evidence. The tender is rejected.
The third document is described as “schedule of contributions to [VV Company].” This document appears to be a summary of payments the respondent asserts the applicant made to a company associated with Ms O. It is a schedule of payments prepared by the respondent by reference to other documents. It is not clear whether the source documents used to prepare the schedule are in evidence. Whilst Ms O was cross-examined on the schedule and accepted that it was what it appeared to be, her evidence does not go so far as to accept its accuracy. It is not a document that Ms O prepared.
In the circumstances, I am prepared to accept a tender of the schedule on the basis that the schedule is an accurate summary of the source documents recording the transactions contained within it. In the event that the applicant contends that the schedule is inaccurate then he may, as part of his written submissions in the proceedings, point out the errors in the schedule. On that basis, the schedule be marked as Exhibit 49.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 5 February 2024
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