Rabkin and Edsall (No 2)

[2018] FamCA 330

FAMILY COURT OF AUSTRALIA

RABKIN & EDSALL (NO. 2) [2018] FamCA 330

FAMILY LAW – EVIDENCE – Admissibility – where the Applicant seeks to rely on an affidavit of his sister – where the Respondent opposes the application – where the interests of justice are better served by granting the application – where leave is granted for the Applicant to rely on specific paragraphs of the affidavit.

Family Law Act 1975 (Cth)

APPLICANT: Mr Rabkin

RESPONDENT: Ms Edsall

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 5702 of 2013

DATE DELIVERED: 3 May 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 3 May 2018

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: CNG Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Barbara Fox Solicitor

Orders

IT IS ORDERED THAT

1. The Applicant has leave to rely on paragraphs 18, 19 and 34(b) of the Affidavit of Ms S filed 26 August 2013 when Ms S is called to give evidence in the proceeding re-commencing on Tuesday, 8 May 2018.

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 Rabkin & Edsall 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 BRISBANE

FILE NUMBER: BRC 5702 of 2013

Mr Rabkin

Applicant

And

Ms Edsall

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. These are some reasons for a ruling I intend to make.  The issue in the present case is not whether Mr Rabkin (the Applicant father who now appears in person) should be granted leave to reopen the hearing for the purpose of adducing evidence from his sister, Ms S, because the matter is already reopened to receive evidence of events which occurred since the reservation of judgment last year. 

2. The issue, therefore, is whether Mr Rabkin should be granted leave to adduce evidence from Ms S (who will be called by him to give evidence of more recent events) about matters that she had previously discussed in an affidavit of hers filed 26 August 2013, but not relied upon by him when the matter proceeded to hearing in March of last year.

3. Ms Oakley, who appears on behalf of the mother, opposes the grant of such leave.  She does so on the basis of her submission that her client will be prejudiced if Mr Rabkin is granted leave to rely now upon the affidavit of Ms S, filed 26 August 2013, and therefore available to him when the matter commenced before me on 6 March 2017. 

4. Reference to the Case Outline filed on behalf of Mr Rabkin – who was then represented by solicitors and for whom Mr Anderson of Counsel appeared in March of last year – does not include a reference to Ms S. 

5. The issue of Ms S’s availability and the decision not to rely on her affidavit filed, as I have already said, on 26 August 2013, was something about which Ms Oakley cross-examined Mr Rabkin on 7 March 2017.  Her cross-examination of him about it can be found at page 55 of the transcript of that day.  In summary, Mr Rabkin’s evidence was that he had not intended to call Ms S; that while she was in Queensland, she was very sick the previous week; that he did not know whether she was so sick that she could not give evidence, but knew she was unwell.  In essence, he did not enquire whether she was too sick to give evidence, but just decided not to call her.

6. The trial, as I have said, commenced on 6 March 2017 and proceeded for a number of days thereafter. 

7. At the reopening of the matter, when the matter was last before me, Mr Rabkin adverted to his desire to rely upon Ms S’s August 2013 affidavit as well as an affidavit filed this year that dealt with more recent events. 

8. In support of the leave sought, a number of documents have been provided by Mr Rabkin.  These include a medical certificate for Ms S, which asserts that she was not available for her usual duties between 23 February 2017 and 28 February 2017.  That is, a time period prior to the commencement of the trial.

9. There is also correspondence from the T Medical Centre dated 19 April 2018.  It seems that Ms S attended upon that Centre on 23 February 2017 with a severe chest infection.  The correspondence from the Medical Centre asserts that she remained unwell until 3 April 2017.  That, of course, encompasses the period during which the trial proceeded.  The correspondence does not, however, assert that Ms S was so unwell that she could not have been made available for cross-examination, either in person or by telephone. 

10. A further document relied upon by Mr Rabkin in support of his application is a Patient Treatment Report from the National Home Doctor Service. This outlines that Ms S was seen by someone from that service on 20 February 2017, at which time she was prescribed medication. It was recommended that she be reviewed by a general practitioner in two days and it was also recommended that, if her condition deteriorated, she attend an emergency department.

11. It appears Ms S was seen again by the National Home Doctor Service on 23 February 2017, at which time it is recorded that she was suffering from an infection and signs of early shingles were detected.  She was prescribed medication; it was recommended that she attend upon a general practitioner for follow up in one to two days.

12. I am not necessarily persuaded on the basis of the evidence, being a medical certificate, the letter from T Medical Centre and the documents provided by the National Home Doctor Service, that Mr Rabkin has established that Ms S was not available through ill health to be made available for cross-examination when the trial first proceeded before me in March of last year.

13. However, as I have said, that is not really the issue. 

14. It seems to me that, consistent with the principles which are, though, to be applied in determining applications to reopen a case prior to the delivery of judgment, the fundamental principle in the present situation is whether the interests of justice are better served by allowing Mr Rabkin’s application or rejecting it. 

15. I am not persuaded that the interests of justice are better served by permitting Mr Rabkin to rely upon the entirety of the contents of the affidavit of Ms S.  However, I am persuaded that those interests are served by permitting him to adduce from her, when she is called and made available at the recommencement of the hearing before me next week, paragraphs 18, 19 and paragraph 34(b) of her affidavit filed 26 August 2013. 

16. Those aspects of the affidavit deal with specific incidents.  In respect of some of those, both Mr Rabkin and the mother have already been cross-examined.  There did not seem to me to be any other witnesses necessarily required to respond to Ms S’s evidence as particularised in the paragraphs to which I have referred; and, it does not seem to me that permitting Mr Rabkin to rely upon those paragraphs only is likely to add significantly either to the mother’s costs or to the duration of the trial.

17. I think Ms S’s evidence is potentially probative, because in those paragraphs she gives direct evidence of witnessing a number of occasions of asserted physical violence by the mother towards the father, Mr Rabkin.  So, in that sense, it could not be thought other than that the evidence is relevant.  As to whether, once all of the evidence is concluded, it makes a difference to the findings is a matter, of course, that can only be determined following the close of the evidence.

18. It is clear, for the reasons I have already outlined, that the evidence was in existence.  It is also clear that, at a time when Mr Rabkin was legally represented, a decision was made not to rely upon Ms S’s affidavit as part of the evidence in the father’s case or make her available for cross-examination.  However, she is available now and will be available to be cross-examined next week on her most recent affidavit. 

19. For these very short reasons, then, I make orders in the following terms.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 3 May 2018

Associate:     

Date:              3 May 2018