Saltzer & Pacek
[2021] FedCFamC1F 375
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Saltzer & Pacek [2021] FedCFamC1F 375
File number(s): MLC 2954 of 2020 Judgment of: BENNETT J Date of judgment: 25 October 2021 Catchwords: FAMILY LAW – FINANCIAL PROCEEDINGS – oral interrogation by cross-examination as an aid to discovery. Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 25 October 2021 Place: Melbourne Counsel for the Applicant: Mr Ribbands Solicitor for the Applicant: Melbourne Legal Chambers Counsel for the Respondent: Ms Stoikovska Solicitor for the Respondent: Cornelius Family Law ORDERS
MLC 2954 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SALTZER
Applicant
AND: MS PACEK
Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
25 OCTOBER 2021
THE COURT ORDERS THAT:
1.The husband be and is hereby restrained from leaving the precincts of this Registry of the Court until excused by Senior Judicial Registrar Hoult or myself AND IT IS NOTED that he is excused for lunch today.
2.For the avoidance of doubt, the husband may be cross-examined in relation to general financial matters providing that cross-examination of the C Pty Ltd’s RND (Resource and Development Rebate) is dealt with.
3.In the event that the wife is to be cross examined this day, the cross examination not exceed 40 minutes.
4.In the event that counsel for the husband does not call the husband to give evidence this day the husband be called by the Court pursuant to Rule 8.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
5.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
6.This matter be otherwise transferred back to Senior Judicial Registrar Hoult this day for the continuation of the interim hearing.
7.Upon conclusion of the cross-examination, the Senior Judicial Registrar make orders and directions for hearing of the balance of the wife’s application and the wife’s amended application and any responses thereto, before me.
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 Saltzer & Pacek is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
This matter comes before me on referral from the Senior Judicial Registrar, before whom the matter was listed pursuant to paragraph 2 of my Order made on 27 August 2021. That paragraph of the Order reads:-
2. The wife’s Application in a Case and any amendment thereto and the husband’s response to the Application in a Case filed on 26 August 2021 be set down for hearing before Senior Registrar Hoult on Monday 4 October 2021 (“the adjourned date”) NOTING THAT such time must allow for 2 to 3 hours of uninterrupted cross examination of the husband in relation to financial matters.
These are financial proceedings which, to say the least, are of some complexity. They have been the subject of brief reasons of mine on 12 April 2021 and longer and more detailed reasons of Judge Kelly from what is now Division 2 of the Court.
One of the complexities is lack of discovery on the part of the husband.
On 27 August 2021 the wife had an application before the Court filed 26 August 2021. On 27 August 2021 I made orders requiring the husband to file and serve certain documents, which include an affidavit by 15 September 2021 which comprehensively and substantively responds to the comprehensive affidavit of the wife sworn on 30 July 2021. The husband also had to identify any inaccuracy in the affidavit of Mr AB sworn on 26 August 2021 in circumstances where Mr AB, a solicitor, purported to depose to matters not within Mr AB’s personal knowledge but in place of the husband. The husband has difficulties with reading and writing such as impedes or make more time consuming the preparation of affidavit material to be sworn by him. Mr AB swore an affidavit for the husband but the wife is entitled to know of if the husband adopts that evidence completely.
An issue has arisen before Senior Judicial Registrar Hoult this morning as to whether the husband could be properly cross-examined pursuant to paragraph 2 of my order made on 27 August 2021. As I understand it – and relying only on what Mr Ribbands, counsel for the husband, has submitted before me this afternoon – Mr Ribbands’ contends that the orders made on 27 August 2021 entirely extinguished and brought to an end the wife’s application in the case filed on 26 August 2021. Accordingly, there is nothing on which the husband could be cross-examined this morning. Mr Ribbands has indicated to Senior Judicial Registrar Hoult that, if the Senior Judicial Registrar ordered the cross-examination to proceed, the husband would review that decision. I came onto the bench prepared to entertain any oral application for review today, but, I note, none is made.
By paragraphs 2 and 3 of the order made on 27 August 2021 I required the husband to attend for cross-examination of at least two to four hours uninterrupted in relation to financial matters. So notwithstanding that he may have filed certain documents since 27 August 2021, where those documents were contemplated by those orders clearly, it does not absolve the need for him to attend for cross-examination.
Cross-examination should address the evidence about the resource and development rebate and the inconsistency between the husband’s evidence and the documents produced on subpoena. In the event that there is any excess time remaining, then there can be cross-examination about financial matters in general. Mr Ribbands is concerned to draw a distinction between matters relating to credit and financial matters. It’s not my intention that the husband would be cross-examined in relation to matters going only to credit, however, a financial matter is not immune from cross-examination merely because it may also reflect adversely on the husband’s credit.
The overarching responsibility of the Court is to deal with matters proportionately and as speedily as possible. It is also to preserve equitably and fairly an amount of time that we can deal with other litigant’s cases. If it appears in a case that there is a lack of disclosure on a serial basis that behaviour must be rectified and de-incentivised. Whilst a matter can proceed to final hearing based on allegations and inviting a funding of non-disclosure, that can be a costly exercise if disclosure is then purported to be made at a very late stage and cannot be tested. In the circumstances of this case, the husband should be compelled to make disclosure. Given his literacy difficulties the most efficient means is by oral evidence before the Senior Judicial Registrar. Whether or not that is characterised properly as a form of interrogation or a form of oral discovery, I think is not particularly relevant. The husband has not appealed my Order made on 27 August 2021.
To the extent that Mr Ribbands has complained about potentially a lack of procedural fairness, the husband well knew that he was required for cross-examination today and so he has certainly had notice of that. Procedural fairness and natural justice pertain to the Court depriving the parties of rights or imposing upon them obligations or making orders without notice to them. I fail to see how Mr Ribbands has identified anything that the husband did not know about. The fact that the orders requiring the husband to be here today might be orders which require him to do something he does not particularly want to do today doesn’t constitute a denial of procedural fairness; it constitutes an extra way that he can satisfy his obligations of discovery.
I understand that the issue raised by counsel for the husband before the Senior Judicial Registrar is now clarified to the extent that cross-examination of the husband by counsel for the wife before the Senior Judicial Registrar will now proceed. I will make orders compelling the husband to remain available for cross-examination.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett delivered on 25 October 2021. Associate:
Dated: 13 April 2022
0
0
0