Pearce and Pearce (No 3)

[2013] FamCA 1158

FAMILY COURT OF AUSTRALIA

PEARCE & PEARCE (NO 3) [2013] FamCA 1158

FAMILY LAW – PRACTICE AND PROCEDURE – Objections to evidence – consideration of admissibility of evidence.

Family Law Act 1975 (Cth)

APPLICANT: Ms Pearce

RESPONDENT: Mr Pearce

FILE NUMBER: DNC 462 of 2009

DATE DELIVERED: 8 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 8 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney SC

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd QC

SOLICITOR FOR THE RESPONDENT: Cater & Blumer

Orders

1. By consent leave is given to the solicitors to inspect and if necessary copy documents produced under subpoena by Halfpennys Lawyers (schedule 3).

2. The matter is further adjourned to Tuesday 9 April 2013 at 10.00 am before the Honourable Justice Dawe for mention.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Pearce (No 3) 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 DARWIN

FILE NUMBER: DNC 462 of 2009

Ms Pearce

Applicant

And

Mr Pearce

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am now being asked to deal with the question of the annexures to the affidavit of Ms F which I have received by consent this morning.  The objection is in relation to two of the annexures to that affidavit, being annexures 7 and 8.

2. The annexure 7 appears to be a copy of statements of account of the husband with BankSA in the range from 24 October 2005 to 23 November 2005.  One of the credits to that account is a credit for 9 November 2005 which is described as “ATO” (which I make the assumption it stands for the Australian Taxation Office) ATO Number, then a long number, and the credit for $9406.45, into the BankSA Freedom Offset account of the husband.

3. The annexure 8 is a series of emails between the husband and the wife, ranging in age from 4 May 2007 back to 8 February 2007.  They are put on the basis that they set out evidence in relation to the wife’s allegation that there was an oral agreement entered into between the parties that was not the subject of mention or dealing within the final consent orders which are the subject of the section 79A application to have that order set aside.

4. Firstly, in relation to the objection to the Court receiving the BankSA document, the basis of the objection is that it is not relevant to the proceedings before the Court and that, in itself, it does not establish the claim which the wife makes in relation to an allegation that the receipt of the sum of approximately $9000 in November 2005 forms any basis upon which she can establish the grounds necessary in section 79A.

5. On the face of the document itself, of course, it does no more than lead to a presumption that there was a payment made from the Taxation Office to the husband.  However, it may form the part of evidence which may come before the Court if and when the Court decides that the section 79A proceedings should not be summarily dismissed.  Therefore, on the face of it, at this stage of the proceedings and bearing in mind the Court’s obligation to ensure that the best evidence is before it, where possible, I do not accept that it is appropriate or necessary to refuse to accept as evidence a BankSA statement showing a credit of $9400 into an account in the name of the husband at that time.

6. It does not establish on its own any basis upon which section 79A could be applied, because on its own it is simply a credit into a bank account.  However, on the basis that there may be other evidence or other submissions put in due course should the section 79A proceedings continue, then I receive that annexure to the wife’s solicitor’s affidavit.

7. In relation to the correspondence by way of emails between the parties, again, this is at a time much later than the consent order, but it is set out to establish a ground which would assist the wife in the section 79A proceedings, namely, her claim in relation to an oral agreement entered into at the time of the consent order.

8. Until such time as I have heard all of the evidence and all of the necessary submissions, it is not appropriate for me to make a ruling which deals with the effect to be given to the alleged oral agreement, if proven, on the basis that it may or may not establish a miscarriage of justice which would be sufficient for the Court to exercise its discretion to set aside the section 79 consent order.  On that basis, also, I decline to dismiss the second annexure 8 to the affidavit.  That is on the basis that I am not making a ruling at this stage because it would be inappropriate to make a ruling until such time as all of the issues in relation to the section 79A proceedings are dealt with.  That is on the basis that I am yet to hear the application to summarily dismiss the wife’s application.

9. The relevance, in any event, to the question of the section 79A application itself, whether there was any miscarriage of justice, would appear to be limited, so that sentence I am happy to remove for the application for summary dismissal.

10. In relation to paragraph 44, it needs to be read in the context of the heading,  “Discussion Regarding Consent Orders” and the material which appears in the affidavit afterwards which appears to be relating to the oral agreement, which was one of the bases upon which the wife is alleging a miscarriage of justice.  As I have previously said today, I am not in a position to be making a ruling as to whether there will be a finding that the oral agreement exists or that, if it did, that that forms a basis upon which an order can be made under section 79A either on its own or with other factors. 

11. Therefore, in the context of the allegations made concerning the oral agreement and the whole part of that heading “Discussion Regarding Consent Orders” I will leave it in on the basis that it is relevant to the background asserted by the wife, not necessarily proven, to the consent orders which are sought to be set aside.

12. In relation to paragraph 47, I am being asked to dismiss the paragraph as inadmissible on the basis of its form.  It is clear that it does not give exact details of “he said/she said” in the context of that objection to form.  What it does is set out what the wife alleges the husband told her and how she replied.

13. On the basis of the Court’s discretion to receive evidence in that form for the purposes of this hearing, I consider it not necessary to dismiss that whole paragraph or any portions of it just because of its form.  I will take into account that it is in form a summary of conversations passing between the husband and wife and give it such weight in due course as is appropriate if there is no further evidence led or sought in cross-examination as to the basis of that material.

14. In relation to the issue of relevance, it relates again to the oral agreement and its significance, if any, to the section 79A application.  In relation to the form, I have already ruled upon the previous item which had, in part, less proper form than this paragraph, where there is some attempt to indicate words to effect that.

15. Again, in the background to the matter and the arguments before the Court, I will leave paragraph 55 in, as I consider it to be relevant to the issue that needs to be established in due course in relation to the alleged oral agreement.  In relation to form, I take it as it currently stands, to be a summary and in part, a summary of the interaction between the parties.  I will give it such weight as is appropriate when the matter is to be finally determined and, in this case, will not dismiss it simply for the argument in relation to the dismissal application.

16. Paragraph 61, the first three sentences will now be:

    I was not aware prior to the making of the consent order that this order had been valued.  [Mr Pearce] did not tell me that it had been valued.  The value of 280,000 being $140,000 each as we were joint owners of the property set out at item 31 of the application of consent orders was a value inserted by [Mr Pearce] which I accepted.

17. That deletes “Mr Pearce” from the end of the first sentence in paragraph 62 and then the next sentence:

    [Mr Pearce] did not tell me [D Street] had been valued.

    and then the value of $550,000 etcetera as in the previous matter.

18. In relation to the application to have all of the parts of the affidavit paragraph 71 to 152 inclusive rejected on a count of allegations it is not relevant, the provisions of section 79A clearly indicate that where the Court is satisfied that there has been a miscarriage of justice by reason of those circumstances set out in section 79A(1)(a) then the Court may, in its discretion, vary the order or set aside the order, and if it considers appropriate make another order under section 79A in substitution for the order so set aside. 

19. The material in paragraph 71 to 152 will be clearly relevant to the Court exercising its discretion whether to vary the order or set the order aside under section 79A(1)(a)(i) as it is relevant to the Court considering whether it is now proper to exercise that discretion to vary the order or set it aside.  In making a decision as to whether it is appropriate to make another order under section 79, the material would also be clearly relevant to the steps that would have to be taken if the Court were to decide to make another order under section 79 in substitution of the order if the Court were to decide in its discretion to set the order aside. 

20. I consider the material in relation to what has happened since the consent orders were made and the current circumstances of the parties and the history of the relationship with the parties since the consent order was made are relevant both to the overall assessment of the discretion to be exercised under section 79A(1)(a) and, in due course if appropriate, under section 79.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 8 April 2013.

Associate: 

Date:  29 January 2015