Richards and Whipp (No 2)

[2011] FamCA 142

FAMILY COURT OF AUSTRALIA

RICHARDS & WHIPP (NO 2) [2011] FamCA 142

FAMILY LAW - CHILDREN - leave granted to mother to re-open the case in order to admit further evidence where the hearing has concluded but judgment has not yet been delivered

Family Law Act 1975 (Cth)

APPLICANT: Mr Richards

RESPONDENT: Ms Whipp

FILE NUMBER: SYC 4363 of 2007

DATE DELIVERED: 16 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 16 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Karras Partners

SOLICITOR FOR THE RESPONDENT: Diana Perla & Associates

Orders

1. The mother have leave to reopen the trial to enable the tender of email correspondence between herself and Mr Ed Freedman, Israeli attorney, in relation to his retainer and presence at the trial.

2. Leave granted to the father to make an oral application to inspect L’s passport which is held by the mother’s lawyer and that application be dismissed.

3. Each party’s costs of today be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Richards & Whipp (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4363  of 2007

Mr Richards

Applicant

And

Ms Whipp

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The mother, via way of an Application in a Case filed on 23 December 2010, has sought that the Court make an order that she be given leave to re-open the trial to enable the tender of email correspondence between herself and Ed Freedman, her Israeli attorney, in relation to his retainer and presence at the trial.  In support of that application, the mother relies upon an affidavit sworn by herself on 23 December 2010.  In that affidavit, she refers to the fact that she was questioned during cross-examination on 17 December 2010, which was a Friday, regarding the presence in Court of Mr Ed Freedman, an Israeli attorney, and in relation to his retainer.

2. She deposes to the fact that during the cross-examination she indicated that there had been email correspondence between herself and Mr Freedman, and on that Friday, 17 December 2010, she was requested to produce that email correspondence.  The mother gives an explanation in her affidavit as to why she did not, either on Monday 20 December or Tuesday 21 December, that’s the penultimate and last days of the trial, produce the email correspondence.  The mother points to her involvement in other aspects of the case, and her involvement in L’s day-to-day care, as part of the reasons why she was unable to make this correspondence available. 

3. As I commented in discussion, she does not indicate why, on Saturday, 18 December or Sunday, 19 December, she was unable to print out the relevant emails at a facility away from her home.

4. The mother annexes to her affidavit copies of what she says are all the email correspondence between herself and Mr Ed Freedman that she wishes to tender in evidence.  It is clear from parts of that email communication, that there was other communication between herself and Mr Freedman that was oral.  The mother asserts that it is in the interests of justice that this material should be put before the court, and she asserts that most likely it would produce a different result. 

5. In support of that contention in the submissions of the mother, which is exhibit 35, the mother sets out what she asserts is relevant background as follows:

   1.A background is as follows:

   a)    On Friday 17 December 2010 the mother was cross examined on the scope or purpose of her retainer of the Israeli lawyer Ed Freedman. She was asked in cross examination: (transcript page 46.24 to 46.44)

   ·     “Could it be the case that you have had Mr Freedman come to Australia and sit through the trial process to promote an objective to supplement the permanent removal of [L] from Australia?”

   ·     “Could it be that you have engaged his attendance at the trial for assistance to ensure some methodology to make sure [L] does not continue to develop her relationship with her father?”

   ·     “[Have you retained Mr Freedman to give] assistance for the purposes of the parenting of [L] outside Australia?”

   The mother answered “no” to each question.

   b)    In the same part of the hearing counsel for the father called “for the production of any communication, writing or document as to exchanges between the mother and Mr Ed Freedman from September 2007 to date” (transcript page 41.4) and his Honour ordered “the mother to produce any written material that she has between her and Mr Freedman that she has got in her possession” (transcript 44.42).

   c)    In closing written submissions dated 21 December 2010 counsel for the father put:

   ·     The “fact of retainer of the expert Hague attorney during the current trial” was a “lie and falsehood” by the mother. (written submission at page 6)

   ·     The mother did not disclose the “true purpose throughout this trial” of “the retainer and presence of the Hague attorney” and this supported a submission that [L] should not be permitted to travel outside Australia with the mother (written submission page 16)

6. Further, the mother points to the following issues that she says the emails may be relevant to, and they arise from what she asserts is contained in the father’s closing written submissions:

   6.A further relevant matter for the judge to take into account in the exercise of his discretion is the prejudice to the mother if the application is not granted. This depends upon the relevance of the e-mails to issues in dispute in the proceedings. In light of the father’s closing written submissions:

   a)    The e-mails are relevant to the mother’s credibility. The father has contended that the mother’s oral evidence of the scope or purpose of the retainer was not “true” and suggested that her evidence was a “lie and falsehood”.

   b)    The e-mails are relevant to the issue of whether [L] should be permitted to travel outside Australia with the mother.

7. By way of general principle, in Reid v Brett (2005) VSC 18 (8 February 2005) Habersberger J said:-

   41.  The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:-

   (a)the further evidence is so material that the interests of justice require its admission;

   (b)the further evidence, if accepted, would most probably affect the result of the case;

   (c)the further evidence could not by reasonable diligence have been discovered earlier; and

   (d)no prejudice would ensue to the other party by reason of the late admission of the further evidence[1]

   [1] Re: Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491 at 493-494 per Toohey J, citing Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88 and Murray v Figge (1974) ALR 612

8. In Smith v NSW Bar Association[2], the High Court of Australia stated that in such a situation (an application to re-open before judgment) it was difficult to see why:-

   The primary consideration should not be that of embarrassment or prejudice to the other side.[3]

   [2] [1992] HCA 36;(1992) 176 CLR 256

   [3] At 267 per Brennan, Dawson, Toohey & Gaudron JJ

9. In proceedings in the Family Court, and especially where interests of children are involved, the discretion of the Court to allow a re-opening of a hearing after the conclusion of final submissions may be exercised more generously. 

10. Considering the normal criteria governing the exercise of discretion, I am unable to say that the further evidence is so material that the interests of justice would require its admission, nor am I able to say that the further evidence, if accepted, would most probably affect the result of the case.  Having said that, however, it is clear from what I have already said, particularly the passages that I have incorporated from the written submissions of the mother, that the evidence may be of some relevance, in particular to the mother’s credit, and in respect of the issue of whether or not L should be permitted to travel outside Australia with her mother.

11. Whilst I have indicated the mother has not said why she has not copied these emails during the weekend that she had the opportunity to do so, apart from saying she did not have a printer at her home, I accept her explanation as to why, during the intensity of the final trial, she was unable to find time to conclude that task. 

12. Finally, having read the emails which the lawyer for the mother today describes as “banal,” it is difficult to see how prejudice would ensue to the father by reason of the late admission of the further evidence.  The content of the emails, in fact, might be argued to cut both ways.  For example, the mother initially gave evidence before me, in the witness box on her oath, that there was no retainer.  She subsequently corrected that evidence, but it may be argued that the contents of these emails make more gregious her original statement to me that there was no retainer.

13. In addition, the emails contain information about the mother’s earning capacity once the litigation is completed.  So, although the mother is tendering them for a particular purpose, it may be that there is no prejudice to the father in having these emails tendered. 

14. I take into account the statement made, in the submissions by the father, that should I allow the mother to re-open the case to tender the emails, that that leave to re-open will be limited to a tender of the emails alone (subject to an additional application that costs be paid of this application).  There is no indication in any submissions by the father that the father would seek to widen the inquiry in this area now that the mother has waived her legal professional privilege.

15. Having regard to the facts of this case, involving the interests of a child, I exercise generously the discretionary power to re-open the case to admit the further evidence.  I will make an order in terms of the one sought in the mother’s application in the case filed on 23 December 2010. 

16. In relation to the cross applications for costs in respect of this application, I will reserve any question of costs to be heard at the same time as any application for costs that might subsequently be made after I have made final orders in the matter.

17. For that purpose, I will mark the annexures to the mother’s affidavit sworn on 23 December 2010 as exhibit 37.

I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 16 February 2011.

Associate: 

Date:  20.2.2011