Rasheem & Rasheem (No 3)
[2023] FedCFamC1F 335
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rasheem & Rasheem (No 3) [2023] FedCFamC1F 335
File number(s): PAC 1536 of 2020 Judgment of: ALTOBELLI J Date of judgment: 27 April 2023 Catchwords: FAMILY LAW – EVIDENCE – Admissibility – Where the husband objects to a portion of the wife’s evidence – Where the evidence comprises copies of diary notes written on the wife’s mobile phone – Where the husband will not suffer unfair prejudice if the evidence is allowed – The wife’s evidence is allowed. Legislation: Evidence Act 1995 (Cth) s 135
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 27 April 2023 Place: Sydney Counsel for the Applicant: Mr Lethbridge SC with Ms Seric Solicitor for the Applicant: Veritas Law Firm Counsel for the Respondent: Mr Rosic Solicitor for the Respondent: Michael Jokovic & Associates Counsel for the Independent Children's Lawyer: Mr Kalimnios Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 1536 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RASHEEM
Applicant
AND: MS RASHEEM
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
27 APRIL 2023
THE COURT ORDERS THAT:
1.The objection regarding the Respondent mother’s sworn evidence in relation to family violence insofar as it is based on Exhibit B is dismissed.
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 the pseudonym Rasheem & Rasheem has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
(Revised from Transcript)ALTOBELLI J
The matter before me is a complex parenting and property matter. It is listed for seven days, and we are in day two. The parenting aspect of the case contains serious allegations of family violence and abuse, which allegations are, for the most part, denied. An issue arises in this case about the admissibility of evidence given by the respondent mother (“the mother”) in these proceedings regarding the family violence allegedly perpetrated by the father (“the father”), who is the applicant in these proceedings.
The mother’s evidence is found in her trial affidavit filed on 17 April 2023 (“trial affidavit”), and her affidavit filed today, that is, 27 April 2023 on the voir dire. In the mother’s trial affidavit, and under the heading “History of Domestic Violence”, commencing from paragraph 27, she sets out with considerable detail her evidence about family violence in her relationship with the father. She explains at paragraph 28 that, instead of keeping journals which she had always undertaken since childhood, she made notes pertaining to the family violence by way of emails that she sent to herself after making notes on her phone. She exhibits to her trial affidavit a considerable volume of emails sent to herself during the period between May 2015 and May 2019. The emails became Exhibit A to her trial affidavit.
Exhibit B to her trial affidavit is a copy of the diary notes made on her phone during the period 2018 to 2020. The documents in question are voluminous. Objection is taken to Exhibit B to her trial affidavit, that is, the diary notes made on the phone. The documents in question became MFI1. It is clear that the documents were not disclosed until the last business day before the commencement of this hearing, contrary to the provisions of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). Counsel for the mother has indicated that he will not be tendering the documents in the mother’s case.
Senior counsel for the father, however, takes objection to the entirety of the mother’s evidence about family violence in her trial affidavit insofar as it is based on Exhibit B. The context of this is best illustrated by reference to the mother’s trial affidavit. For example, at paragraph 34, she deposes:
34.On 6 April 2019, [Mr Rasheem] said to me, “You’re actually a fucking cunt. I hope you die.”
This is page 73 of Exhibit B. Thus, senior counsel submits, in effect, that even in circumstances where Exhibit B will not be tendered, the mother’s sworn evidence is highly prejudicial to the husband because it is clearly based on documents used to refresh her memory that will not be tendered.
In the mother’s evidence sworn today, she deposes at paragraph 5 that she has a recollection of the events depicted in her trial affidavit and that the notes “assisted me with identifying the actual dates that they took place”. The mother’s evidence about family violence is not new in the sense that these allegations are materially different to those made in previous affidavits. The existence of journals kept by the mother is also not new, because it was disclosed in an affidavit made 3 July 2020. What is clearly new, particularly from the father’s perspective, is the revelation that the mother’s evidence about family violence is, it would seem, so closely based on documentary records from which the mother has refreshed her memory, but which were not disclosed until immediately before the hearing.
Given that the Rules actually have no role to play in a case where the documents will not be tendered, it is the Court’s view that the focus turns to whether the mother’s substantive evidence about family violence is so prejudicial to the father that it should be excluded. The only basis of this would be s 135 of the Evidence Act 1995 (Cth) (“the Evidence Act”), which creates a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, in this case, the father.
In relation to s 135 of the Evidence Act, the Court does not accept counsel for the mother’s submission that s 135 actually has no role itself, because the prejudice attaches to the documents and not the evidence. I do not accept that. I do not accept that s 135 is so circumscribed. Evidence about family violence is clearly a substantial part of the mother’s case, both in relation to parenting and alteration of property interests. The mother would be prejudiced if her evidence were excluded, though, arguably, not unfairly prejudiced in circumstances where these documents have been kept by her for so long but not disclosed. It may cause an application for an adjournment to be made in her case if the evidence is excluded.
Of course, on behalf of the father, it is submitted that the mother’s evidence contained in her trial affidavit, at least to the extent that it is based on records used to refresh her memory but not tendered into evidence, creates an unfair prejudice to him which cannot be overcome by cross-examination on the basis that, for example, her evidence that the recollection of events depicted in her trial affidavit is based on recollection, and the notes merely assisted her with identifying the actual dates that they took place, is evidence that simply cannot be tested without reference to documents that are not tendered in her case. Indeed, they arguably could not be tendered given their very late disclosure.
The Court believes that this submission is overstated. There are other bases on which the mother’s evidence about family violence might not be accepted. Hypothetically, the Court could find that the mother is not a credible witness on other grounds. There could be documents in evidence that are inconsistent with her sworn evidence. After cross-examination, the Court might simply not accept the plausibility of her contention that the notes merely assisted her with identifying dates rather than events which occurred, and/or things that were said. Indeed, examples referred to in the submissions by senior counsel for the father would highlight the possibility of such a finding of lack of plausibility.
The Court does not accept that the father will suffer unfair prejudice if the mother’s sworn evidence is allowed. Cross-examination can still take place, and the father is represented by highly experienced and skilled senior and junior counsel. It bears remembering that the concept of unfair prejudice which forms the foundation of s 135 of the Evidence Act had its genesis in criminal law where the underlying issue to be addressed was the capacity of evidence to mislead a lay jury and thus result in evidence being dealt with in an unfair manner. By contrast, of course, this matter is being heard by an experienced trial judge.
In any event, s 135 of the Evidence Act grants a general discretion which would, in the circumstances of this case, need to be exercised having regard to the nature of the dispute. Here, it is a long running, intense and very expensive litigation involving children as well as property. The discretion would also need to be exercised by reference to the implications, not just on the litigants of this case, but also on other litigants, should the hearing be postponed or adjourned.
The Court has considered admitting the evidence provisionally, but ultimately sees no benefit in doing so. Whether it were admitted provisionally or not, ultimately, the evidence in question would be assessed by reference to its weight in the context of all of the evidence in this case, and not just the cross-examination of the mother. On the basis of counsel for the mother’s representation to the Court that he will not seek to tender the documents comprising Exhibit B, the general objection to the remainder of the mother’s sworn evidence in relation to family violence insofar as it is based on Exhibit B is dismissed. Now, that, of course, does not prejudice any specific objections to the mother’s affidavits when we get to that time.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 27 April 2023
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