Poyzer and Tritton

[2009] FamCA 734

FAMILY COURT OF AUSTRALIA

POYZER & TRITTON (NO. 3) [2009] FamCA 734

FAMILY LAW – PRACTICE AND PROCEDURE – part-heard trial – extension of time granted to the parties to file submissions – discovery and disclosure – application for leave to call witnesses – applications for leave to file an affidavit and for leave to give further evidence

APPLICANT: Mr Poyzer

RESPONDENT: Ms Tritton

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 4 August 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 4 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: David M Davidson

Orders

1. The time is extended for both parties to comply with paragraph 1 of the Order of the 5 May 2009 to the 21 August 2009.

2. IT IS NOTED that the wife is prepared to produce her passport and IT IS DIRECTED that the husband inspects the wife’s passport at the wife’s solicitor’s office within fourteen [14] days from today at a time and date to be notified by the wife’s solicitors to the husband.

3. The husband has leave to prepare an affidavit annexing to it the “core documents” and provide it to the wife’s solicitors so that they can consider the material therein and then when they have received that information and have had an opportunity to peruse it the Court will hear further argument how that will assist it in determining the issues that need to be determined AND IT IS NOTED the Court will hear further argument at the recommencement of the trial as to why the affidavit should be put in evidence.

4. The matter stands adjourned to 2 September 2009 at 10.00 am before the Honourable Justice Dawe for three [3] days and if required a further two [2] days on the 22 and 23 September 2009.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 of 2001

MR POYZER

Applicant

And

MS TRITTON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. I have given both parties an extension of time to file their final address dealing with the submissions on the evidence that I have heard thus far.  In relation to the issue concerning Mr B, the wife concedes that she no longer is now asserting that the husband is or was an owner or part‑owner of AA Service, therefore he is not required to give any evidence. 

2. In relation to the evidence of Mr W, I have already heard his evidence and I am not satisfied that it is appropriate for him to be recalled.  He has already given his evidence and I will weigh his evidence up appropriately.

3. In relation to the discovery of further documents, the wife concedes that she will provide an inspection of her passport to the husband and I have made an order about that taking place at the wife’s solicitors’ premises.  In relation to the other documents to which are referred, namely the disposal of the proceeds of sale of the various properties by the wife, the wife asserts that such disclosure has already been given in recent discovery documents and the husband disputes this.  I will review that issue if necessary when the trial resumes before me and the wife’s counsel are available to produce the relevant documents.

4. In relation to the leave to call Mr I, I have indicated in discussions with the husband that until such time as the evidence of Mr I in relation to the updated document is produced for the wife to get legal advice concerning the capacity of the Court to receive that document as evidence of the material contained therein and whether that can be done by consent, I do not consider it is appropriate for the Court to be put to the cost and time (not the least that the parties be put to the cost and time) of having Mr I recalled if these matters can simply be done by way of appropriately produced paperwork.  It is therefore not appropriate to grant the husband leave to give that further evidence at this stage.

5. In relation to the paragraph 6, the husband seeks leave to file an affidavit annexing “core documents” about what he has done with his money.  This has been a large part of the dispute in the proceedings before me.  I have put it to the husband that these matters have been a serious dispute since at least the commencement of the trial and he says that he has only realised this difficulty when I indicated that I would not receive certain documents produced by him and on his behalf as proof of the facts contained therein because they were not original documents.  He is now seeking to file this affidavit annexing what he describes as “core documents”.  I have directed that he serve such an affidavit and the annexed “core documents” upon the wife’s solicitors in order that the wife’s solicitors can consider that information before I hear further argument about whether I should give him leave to file such an affidavit and be further cross‑examined about those matters.

6. The husband further seeks leave to give further evidence about the wife’s “add‑back” claim.  This refers to material that the wife seeks to add‑back because the husband has attributed children’s expenses, either to her or to the parties equally.  I have received substantial evidence in relation to these matters already and the books of account have been provided to the Court indicating these matters.  I have told the husband that I will hear submissions about what I should make of the evidence that I have received and that it would not appear appropriate for him to give further evidence.

7. In relation to the evidence concerning Mr D, I have already heard his evidence and it is not appropriate to have him recalled in relation to that further evidence. 

8. In relation to the Court ignoring Ms O’s evidence, I have put it to the husband that if he chooses to in his final submissions, he may ask the Court to ignore the evidence given by one of his witnesses and the basis upon which the Court would be asked to do so. 

9. In relation to the treating doctors (paragraph 10 of the husband’s application) he says he has letters from past treating doctors which he seeks to adduce as evidence.  I have indicated to him that he needs to find out whether the wife’s solicitors or counsel will consent to these documents being tendered in evidence without the doctors being called.  It is not appropriate for me to consider such an application before he has done so.

10. In relation to his application for leave to call Mr K to give evidence, there has been an issue raised in relation to the amount paid by Mr K and the transfer of one of the properties to Mr K since the first day or the commencement of the trial because of the subsequent permission given to sell some of the properties.  The husband has been on notice for several months that this was an issue and is only now, at this very late stage, seeking leave to call Mr K to give evidence.  In view of the evidence I have thus far heard, I do not think that it is necessary in consideration of justice and equity to have Mr K called to give evidence as to consider such evidence would not be of significant value, considering the documents I have received and the evidence I have already received in the matter.

11. Paragraph 12 of the husband’s application is that he seeks leave to adduce evidence from the late Mr Z.  Mr Z was a partner of the husband in his business, but has been deceased for some time.  The husband says in his affidavit that what he seeks to produce is a letter written by Mr Z which refers to the market value of his work at M Centre and supports his case.  Mr Z is deceased and cannot be cross‑examined.  The husband says he is not sure whether he has provided a copy of that letter to the wife’s solicitors, but certainly hasn’t done so in connection with this current application he makes which was filed in July of this year.

12. I have therefore indicated that he should make the letter available to the wife’s solicitors requesting they indicate whether they are prepared for me to receive that letter without the author being called and I will consider that further on the resumption of the trial.  I therefore decline to make any further orders other than those that I have made in relation to the matters already.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Associate: 

Date:  13 August 2009