PASCALL & PASCALL

[2015] FamCA 376

FAMILY COURT OF AUSTRALIA

PASCALL & PASCALL [2015] FamCA 376

FAMILY LAW – PRACTICE & PROCEDURE – Leave to re-open to permit the Applicant to adduce further evidence granted.

APPLICANT: Ms Pascall

RESPONDENT: Mr Pascall

FILE NUMBER: BRC 6696 of 2010

DATE DELIVERED: 21 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 21 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carmody

SOLICITOR FOR THE APPLICANT: Craig Ray & Associates

RESPONDENT: No appearance

IT IS ORDERED THAT

1. The Applicant Wife has leave to re-open the proceedings in order to adduce the evidence contained in:

   (a)the affidavits of Ms Pascall filed 11 November 2014, 12 December 2014 and 19 May 2015;  and

   (b)the affidavits of Ms B filed 12 December 2014 and 31 March 2015 (which wrongly bears the name “Ms Pascall” on Sheet 1);  and

   (c)       the affidavit of Mr C filed by leave today.

2. The matter is listed for further hearing at 10.00 am on 3 June 2015.

3. Any further affidavit intended to be relied upon by the Applicant Wife be filed and served by no later than 4.00 pm on Wednesday, 27 May 2015.

NOTATION:

A.The Court will afford the parties the opportunity to be heard further in relation to the admission of any affidavit filed by the Applicant Wife pursuant to Order 3 above. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascall & Pascall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6696 of 2010

Ms Pascall

Applicant

And

Mr Pascall

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Having had the opportunity to read the material relied upon, it is my inclination, at this time, to permit the Applicant to reopen her case for the purpose of relying upon that material. 

2. I think that the way in which I can attempt to deal with the appalling delay in the finalisation of this particular matter is to set it down again for the purpose of any cross-examination that the Respondent may wish to undertake of the witnesses: namely, the Applicant (I would not have thought the Applicant’s solicitor - because his affidavit simply seeks to clarify the position from the hospital) and, importantly, Ms B if required. I can do this on Wednesday, 3 June and, anticipating this can be done, it is my intention to deliver reasons and make orders at 2.00 pm on 12 June 2015. 

3. The Respondent’s absence today can be accommodated by listing the matter for 3 June 2015.

4. In the absence of an appearance by the Respondent and submissions to the contrary, I have determined that it is appropriate, having regard to the principles which apply, to permit a reopening because to do so will enable the Court to be more able to do justice as between the parties - there is fresh evidence and the interests of justice, given the nature of the evidence sought to be relied upon, requires that leave be granted in the exercise of the discretion.

5. I have, of course had regard to the decisions, like Geli & Geli (in this Court), Inspector-General in Bankruptcy & Bradshaw (a decision of the Federal Court), Smith & New South Wales Bar Association (a decision of the High Court), Summitt & Summitt and Ors (Re-opening) (a decision of Murphy J of this court), the decision of EB & CT (No. 2), (per Applegarth J of the Queensland Supreme Court) and the references in those various authorities to other authorities including Reid & Brett.  

6. Having regard to the contents of the affidavits sought to be relied upon, I consider that:

   a)the evidence they contain is so material that the interests of justice require its admission; and

   b)if accepted, it would most probably affect the result of the case - because it is clearly relevant to an assessment of future earning capacity and, not only the existence of the same but the opportunity to exercise the existing earning capacity; and

   c)it could not be said that the evidence could not by reasonable diligence have been discovered earlier - because it clearly postdates the date on which this matter was reserved. 

7. Insofar as the consideration of prejudice to the Respondent by reason of the late admission of further evidence, I consider (absent submissions from the Respondent) that any prejudice can be cured, as it were, by affording him the appropriate opportunity to engage in cross-examination, to be heard further in submission as to the weight that should be afforded to the evidence admitted as a consequence of the decision to permit reopening and to further consider the manner in which the evidence and any findings which might flow from it (if accepted) would be factored into the exercise of discretion undertaken by the Court in considering the relevant factors pursuant to section 75(2). 

8. It is for these reasons that I have determined to grant leave to re-open.

9. It is appropriate the Applicant ensure that the Respondent is served with a copy of the order and a copy of the reasons, so as to provide him an understanding of the basis on which I have exercised the discretion to permit reopening and to inform him of his opportunity to engage in cross-examination if required on 3 June 2015. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 21 May 2015.

Associate:     

Date:    21 May 2015