Saxena & Saxena
[2006] FamCA 588
•16 June 2006
[2006] FamCA 588
JFMSPS
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA
Appeal No. EA 15 of 2006
File No. PAM 4988 of 2005
IN THE MATTER OF:
MS
Appellant/Husband
- and -
PS
Respondent/Wife
REASONS FOR JUDGMENT
(EX TEMPORE)
BEFORE: JUSTICE I R COLEMAN
HEARD: 16th day of June 2006
JUDGMENT: 16th day of June 2006
APPEARANCES: Mr Levy of Counsel, (instructed by Norwest Family Law, PO Box 6743 Baulkham Hills NSW 2153) appeared on behalf of the appellant husband.
Mr Schroder of Counsel, (instructed by Coleman & Greig Solicitors, DX 8226 Parramatta) appeared on behalf of the respondent wife.
Name of Appeal MS & PS
Appeal Number EA 15 of 2006
Date of Appeal Hearing 16th day of June 2006
Date of Judgment 16th day of June 2006
Bench Coleman J
Catchwords: Appeal against Federal Magistrate’s order for payment of spousal maintenance.
Appellant’s contention that he was denied procedural fairness not made out – Federal Magistrate justified in refusing adjournment application.
Appellant challenged basis upon which her Honour found that the respondent was unable to support herself adequately under s 72 of the Family Law Act 1975 –requirements for establishing a right to spousal maintenance under the Act not sufficiently explained to the appellant, a litigant in person, in accordance with the guidelines as set out in Re F: Litigants in person guidelines (2001) FLC 93-072 – findings of fact made on objectionable and inadmissible evidence – challenge upheld.
Appeal allowed – retrial ordered.
Costs certificates ordered for appeal hearing and retrial.
This is an appeal against orders made by a Federal Magistrate on 11 January 2006. The orders then made provided that the present appellant, who was the respondent in the lower Court and is the husband in the proceedings, pay to the respondent to the appeal, who was the applicant in the lower Court and is the wife, the sum of $265 per week by way of spousal maintenance. Such order was to remain in place until the 30 April 2008, or to cease earlier if the wife ceased attendance at her current university course.
The orders further provided that the spousal maintenance payments receivable by the wife be backdated to 30 June 2005, thus giving rise to a liability of the husband of $7950 which the learned Federal Magistrate ordered to be paid within two months of the date of order. An order for costs in the sum of $1365 was made. The Court has been informed by learned counsel for the appellant that such sum has in fact been paid.
Before proceeding to deal with the substance of the appeal, it is appropriate to record some brief observations with respect to the proceedings which came before the learned Federal Magistrate. As a reading of the transcript makes clear, the learned Federal Magistrate heard and determined the wife's application for spousal maintenance in very difficult and unhelpful circumstances. It is appropriate to briefly refer to the most significant of those circumstances.
The applicant wife has at all material times been resident in India and was in India when the proceedings were heard by the learned Federal Magistrate. As is apparent from the transcript, not only was the applicant wife half way around the world from where her Honour was sitting but gave evidence through an interpreter. That is not said critically of the wife but simply to record that apart from the difficulties of having to evaluate evidence by telephone from the other side of the world, the evidence of the applicant wife was given through an interpreter. Further complicating the issue, for the learned Federal Magistrate, and certainly not assisting the task which counsel for the applicant wife undertook, was the reality that whilst the client was in India, counsel was here and, it seems from a couple of passages in the transcript, having to take instructions “on the run” as it were under great difficulty.
To add to those difficulties, if they were not sufficient, the appellant, who was the respondent in the lower Court, represented himself. A reading of the transcript makes clear that the appellant was prone to “going off at a tangent”, if one might use that expression. He appeared somewhat excitable and it is clear that her Honour had the additional complicating factor of an unrepresented and at times excitable litigant who appeared, from the things he said during the course of the proceedings, to have very little idea of what was involved, or should have been involved in the proceedings.
Added to those difficulties, as the transcript makes clear and no doubt through no fault of the transcription service or its officers or employees, there were gaps in the transcript of the recording of the proceedings marked by the word "(indistinct)” during the course of answers.
Against that very difficult background, and no doubt with the additional complication of having a large list of cases to deal with, the learned Federal Magistrate discharged her judicial duties in relation to the proceedings before her.
There is, it could be said, some unfairness against that background if the appeal were to be allowed given that the appellant, having failed before her Honour, has belatedly but sensibly secured the services of competent counsel who has, with great skill and thoroughness, dissected the transcript meticulously and formulated a comprehensive, closely reasoned and logically taut set of submissions aimed at attacking the learned Federal Magistrate's decision.
The difficulty which this Court has is that as the intermediate appellate Court which stands between decisions of Federal Magistrates and the High Court of Australia, the duty of this Court to apply the law is clear, not in doubt, and something from which the Court cannot shrink. The reality that the Court feels sympathy for the learned Federal Magistrate, which is not, with respect, said in any sense patronisingly, for the reasons outlined earlier, does not change anything. This Court's clear duty is to apply well settled and undisputed appellate principles. Against that background then the Court comes to consider the appeal.
10. The Notice of Appeal makes clear that the appellant husband seeks a discharge of all orders made by the learned Federal Magistrate and the dismissal of the wife's application for spousal maintenance. Her learned counsel sensibly conceded that, having regard to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172, and the reality that allowing the appeal would not inevitably lead to the wife's application for spousal maintenance failing if the appeal were to be allowed, this Court would remit the proceedings for re-hearing in the Federal Magistrates Court.
11. Counsel for the respondent wife resisted the appeal and in a very comprehensive and closely reasoned set of submissions provided stout resistance to the appeal and sought to maintain the learned Federal Magistrate's orders.
FEDERAL MAGISTRATE’S REASONS FOR JUDGMENT
12. It is appropriate to refer to her Honour's reasons for judgment before proceeding to deal with the challenges to that judgment. As noted earlier, her Honour was confronted with a most difficult set of circumstances in which to exercise her judicial function. Her Honour correctly identified the proceedings which she was obliged to determine and the affidavit material relied upon by the parties. The brief facts of the case were referred to by her Honour. There was no suggestion that the details provided in that regard were other than substantially accurate.
13. The appellant is now aged 28 and the respondent is aged 34. The respondent to the appeal lives in India where the learned Federal Magistrate found "she would most probably continue to reside". The parties are both Indian by birth. The husband lives and works in Australia, is a citizen of Australia and has lived here for some time.
14. The parties married in October 2000, her Honour finding such marriage to have been "an arranged marriage". The parties separated in November 2002. Their marriage was dissolved in June 2004.
15. The learned Federal Magistrate found that the wife could not return to Australia for reasons relating to the Migration Act 1958 (Cth) and no part of this appeal turns on that issue.
16. The wife's application was lodged in June 2005, which, as learned counsel for the appellant submitted, was barely within time to apply for such relief as of right. Nothing turns on the time of the application save, as is clear, that the wife had, on her own evidence, for two and a half years prior to filing her application, maintained herself without support from the husband or, it can be inferred, the need to bring an application in that regard. Her Honour found that the wife had, in October 2001, obtained a Bachelor of Business Management from Indian University, having completed a course of study which she was undertaking at the time of marriage.
17. Her Honour found that the wife had subsequently changed her mind and had not pursued a course of Master of Business Administration but instead commenced a degree course in a Masters of English, her intention being to obtain qualifications to teach in India.
18. The learned Federal Magistrate then, in a series of passages which invited considerable scrutiny in the appeal, found that the wife's affidavit and oral evidence "gave cogent reasons" for the change of course. Her Honour further found that the wife's evidence, which she accepted, was that:
… the demand for jobs in Business Administration has decreased however the demand for English teachers has increased. Such a demand is consistent with the rapid increase in work for English speaking persons in Indian call centres. Further it is clear the wife always intended to do further study after obtaining her Bachelors degree.
19. Her Honour accepted "the wife's evidence in her affidavit and orally" that "without a Masters degree she will not be able to obtain appropriate employment in India". Her Honour recorded the husband's assertion that the wife was "well qualified to obtain employment in India without a further degree" and that if the wife wished "to have a further degree she should be paying for that degree herself and he should not have to pay for it". Her Honour reiterated that "the wife's evidence is without this further degree she would not be able to obtain employment and, indeed, has not been able to obtain employment since she returned to India in October 2002". As will be seen, the primary focus of this Court's interest, for reasons which will emerge, centres upon those particular findings.
20. Her Honour recorded “The Law”. There is no suggestion that what her Honour there said was other than an accurate statement of the relevant statutory provisions. The issue is rather the learned Federal Magistrate's application of the law to the evidence, or perhaps more accurately the status of findings of fact made by her Honour to which she sought to apply the relevant law.
21. Her Honour recorded that she was:
… satisfied the wife has fulfilled the threshold test as a spouse in need of maintenance until April 2008 at which time she says she will have completed her Masters Degree.
The evidence which her Honour found "compelling" was then referred to and these matters were there stated:
… the marriage and the break up of the marriage seriously affected the wife's capacity to continue her education so as to obtain gainful employment as she was left stranded in India by the husband.
22. Her Honour then referred to the migration matter referred to earlier and concluded that the wife's “only option now is to gain employment in India”.
23. Her Honour found that one of the consequences of the husband's actions upon the breakdown of the marriage was that the wife remains in India where she has “taken action by undertaking further study to be in a position to support herself in India”, adding, “I have found the further study to be necessary and thus she has, under Australian law fulfilled the threshold test”.
24. Her Honour then went on to consider, under the heading "The husbands [sic] capacity to pay", the capacity of the husband to pay the sum which her Honour ultimately ordered, namely $265 per week. Whilst nothing turns on it in this appeal, with great respect to her Honour, this Court would have thought that determining the husband's capacity to pay before determining the wife's, prima facie entitlement to an order by virtue of her weekly needs, might have been a less than entirely appropriate sequence in which to proceed.
25. Her Honour then however considered "The wife's reasonable needs". She concluded that such reasonable needs total $265 per week. Her Honour made a number of observations which invited comment in the appeal. With great respect to her Honour, the foundation for a number of those observations is difficult to discern and to the extent that her Honour purported to "take judicial notice" of matters, the basis upon which she did so is not apparent, nor is the extent to which her Honour purported to take judicial notice in accordance with the provisions of the Commonwealth Evidence Act 1995.
26. The wife had claimed expenses of AUS$505 per week. That sum her Honour considered to be "an excessive amount in India". As a reading of the transcript makes clear, there was no effective cross-examination of the wife in relation to that sum, or the reasonableness of that sum in India or anywhere else. The extent to which the husband was or should have been directed in relation to the consequences of cross-examining or not cross-examining on that claim is less than clear on a balanced reading of the transcript. Be that as it may, her Honour having taken "judicial notice" that India "does not have the standard of living in Australia", proceeded, in the absence of a discernible basis for doing so, to conclude that rather than AUS$505 per week, AUS$265 represented the wife's reasonable weekly needs.
27. Her Honour referred to the wife having sought that the order be backdated to June when she filed her application. This her Honour considered a "proper application". Her reasons for so concluding are not apparent from her judgement.
28. Her Honour made an order for the costs of the proceedings against the husband.
GROUNDS OF APPEAL
29. In his Notice of Appeal the husband raised a number of grounds, some of which overlap with each other. As will be seen, the matters of greatest potential significance relate to the findings of fact made by the learned Federal Magistrate with respect to the threshold issues under s 72 of the Family Law Act 1975 (Cth), and the quantification of the wife's reasonable weekly needs.
30. A number of the submissions of the husband's learned counsel sought to establish that the husband had been denied procedural fairness by reason of the learned Federal Magistrate's refusal of an adjournment of the proceedings. The Court is not satisfied that those complaints are made out. The submissions of learned counsel for the respondent wife in relation to those grounds provide a compelling foundation for rejecting the challenge constituted by those grounds.
31. Having read the transcript of the proceedings carefully and having regard to the objective history of the proceedings, the term "disingenuous" appearing in the written submissions of counsel for the respondent wife in relation to these complaints can be seen as an accurate general description of them. It is quite apparent that only shortly before the proceedings were due for trial did the husband decide that he might be better served by having someone qualified and competent defend him than relying upon his own resources in that regard. The learned Federal Magistrate was quite justified in concluding, as she did, in relation to the adjournment question.
32. Turning then to the two matters which are of particular interest, they being the basis upon which the learned Federal Magistrate was able to find that the wife was unable to support herself adequately under s 72 and the quantum of her reasonable weekly expenses, it becomes necessary to consider what have been referred to in the written submissions of counsel for the parties and during oral submissions as "the guidelines".
33. The so called “guidelines” first found judicial expression in this Court in the decision of the Full Court in Johnson v Johnson (1997) FLC ¶92-764 and suggested that a trial Judge’s duties could include:
1. To inform the litigant in person of the manner in which the trial is to proceed, the order of the calling of witnesses and the right which he or she has to cross examine the witnesses;
2. To explain to the litigant in person any procedures relevant to the litigation;
3. To generally assist him or her by taking basic information from witnesses called, such as name, address and occupation;
4. If a change in the normal procedure is requested by the other parties, such as the calling of witnesses out of turn, to explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
5. If evidence is sought to be tendered which is or may be inadmissible, to advise him or her of the right to object to inadmissible material, and to enquire whether he or she so objects;
6. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
7. To ensure as far as possible that a level playing field is maintained at all times;
8. To attempt to clarify the substance of the submissions of unrepresented parties, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150)).
34. In the later decision of Re F: Litigants in person guidelines (2001) FLC 93-072, the Full Court, comprising the then Chief Justice, O'Ryan J and myself, revisited the Johnson guidelines and restated them in what was considered to be the appropriate articulation in 2001. The Court there suggested:
1. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3. A judge should explain to the litigant in person any procedures relevant to the litigation;
4. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8. A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9. Where the interests of justice and the circumstances of the case require it, a judge may:
• draw attention to the law applied by the Court in determining issues before it;
• question witnesses;
• identify applications or submissions which ought to be put to the Court;
• suggest procedural steps that may be taken by a party;
• clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
35. Perhaps, ironically, one of the changes in the guidelines which apparently evolved between the Johnson formulation and the Re F formulation, relates to the question of objections to inadmissible evidence and, to be fair to the learned Federal Magistrate, as a reading of Re F makes clear, the Johnson guidelines were somewhat “watered down” in that regard in the decision of the Full Court Re F.
36. As both Johnson and Re F made clear, the guidelines were no more than the name implies and failure to comply with or substantially comply with the guidelines did not, of itself, render a decision of a single judge, or in this case a Federal Magistrate, automatically thereby appealable.
37. It ought not be overlooked that the guidelines derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on. The difficulty, as all judges and Federal Magistrates experience on an ongoing basis, is determining where compliance with the guidelines ceases, and legal advice commences. Drawing the line between the two is not easy and in this particular case would have been particular uneasy. It is clear that what the Court must be concerned with is the spirit rather than the strict letter of the guidelines.
38. In this case, as a reading of the transcript makes clear, with the benefit of hindsight, the magnitude of that benefit being something which should never be overlooked, her Honour might have productively taken some little time at the commencement of the trial to give some guidance to the husband in relation to the final matters referred to by the Full Court in Re F with respect to paragraph nine of the Re F formulation of the guidelines.
39. The proceedings before her Honour essentially involved three or perhaps four steps. The first was the determination of whether the applicant wife was unable to support herself adequately without an order of maintenance. The wording of s 72 of the Act is constructive in that regard, and provides:
A party to a marriage is liable to maintain the other party, to the extent that the first‑mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately …
Three scenarios were therein provided for. The only relevant or potentially relevant one of the scenarios which arose in this case, there is no doubt, was s 72(1)(c) which provided “for any other adequate reason” having regard to any relevant matter referred to in s 75(2) of the Act. The first matter was thus to what extent, if any, the applicant wife was able to support herself. The second was potentially her reasonable weekly needs. The third was potentially the capacity of the husband to meet an order if one be warranted and finally, assuming all of those matters to have been resolved in the wife's favour, the order which was reasonable in the circumstances had to be determined having regard to s 75(2) of the Act.
40. With great respect to her Honour, nowhere does one find any indication of those matters to the husband and, although in relation to the second matter, and the passages to which learned counsel for the wife referred the Court, her Honour did at times seek to draw to the attention of the husband the desirability, if not necessity, of his cross-examining the wife on her reasonable weekly expenses, the first matter to which reference has been made was never made clear to the husband. It is apparent from the transcript what the husband was contending. Regrettably, the broader picture of how the matter would proceed and the broad legal principles which governed the proceedings were not explored in any clear or concise way. The trial, as it were, simply commenced and during the course of the trial in relation to the second relevant issue, the husband was given certain indications by the learned Federal Magistrate.
41. Does the failure to comply with the so called guidelines, which the transcript reveals, enliven the intervention of this Court? In isolation the answer to that question is “no”. It becomes necessary however to look at the findings of fact made by the learned Federal Magistrate and determine to what extent the failure to observe the guidelines impacts upon those findings and, separately and apart from that consideration, to consider whether, in the context of the litigation before her, it was otherwise open to the learned Federal Magistrate to make the findings she did, at least in relation to the first issue, namely, the wife's capacity to support herself without an order for maintenance from the husband.
42. As noted earlier, the wife had for two and a half years subsequent to separation supported herself, her evidence makes clear, with family assistance, without seeking or apparently needing to seek any order for maintenance against the husband. The learned Federal Magistrate said that she accepted the written and oral evidence of the wife in relation to her inability to support herself without a maintenance order. It is ultimately less than entirely clear whether the s 75(2) factor of seeking qualifications to obtain other employment or inability to currently obtain employment, or a combination of them, were influential in the learned Federal Magistrate's conclusion as to the so called threshold issue. The evidence which was before her is not in doubt. Counsel for the parties do not disagree in any way in that regard.
43. In her affidavit at paragraph 22, and most importantly paragraph 21, the wife said:
21. Obtaining employment in India is extremely difficult. Without undertaking a Masters degree, which is considered an essential qualification to become a teacher, I will not be able to find employment. Your employment prospects increase significantly once a Master of Education or equivalent degree is undertaken and completed.
22. The Indian government does not have any social security program and therefore I do not receive any money from the government.
44. In oral evidence in chief the wife was asked by her counsel (transcript of 11 January 2006, page 19) "are you employed at the present time?" The wife said that she was not, that she was "a regular full-time student of university". The evidence of the wife was then, in response to a question from her counsel, that she already has obtained a degree with a Masters in Business Administration. Counsel then asked: "Why is it necessary for you to obtain another degree?" Whilst that question was probably objectionable, realistically the husband was never going to be in a position to object to it. More significantly is what followed, namely the answer of the wife:
It is very difficult and almost impossible to get a good job merely on the basis of these degrees, so I am doing an MBMS, Master of Education, to get a job of teacher (indistinct) colleges.
That then was the extent of the evidence in chief of the wife. Clearly, the answer to which reference has just been made, was objectionable. Clearly, the husband would not have known that but, with respect, her Honour would.
45. It may be that the wife could have, by admissible evidence, established what she sought to there suggest by what was necessarily a submission, but that evidence was not adduced. In this Court's view the evidence, like the affidavit evidence to which reference has been made, was objectionable and inadmissible. Her Honour should in the circumstances have rejected it.
46. Without labouring the point, neither when the husband commenced cross-examination or at any later stage, did her Honour explain in any way to the husband the relevant issues and the effect of failure to traverse such issues with the wife in cross-examination. In the course of the wife's evidence however, and the husband's cross-examination of her, the learned Federal Magistrate asked relevantly of the wife (transcript of 11 January 2006, page 44): "can you tell me what you did about getting a job and what sort of jobs you tried to get?" The wife replied: "There is a site where you find a job, and I just send in my resume". The Federal Magistrate asked: "Anything else you've done?" To which the wife replied: "No".
47. The husband then asked: "Why didn't you try in your local area? There are a lot of businesses there, because - - -". The learned Federal Magistrate interrupted quite properly to say: "ask her a question" and re-stated the question: "Why didn't you try to get a job in your local area with your local businesses?" The wife answered that: "Where my father knew, it is a very small place and it is a village and no one can get a job there".
48. With respect, whilst that might have been responsive to the question the assertion that “no one can get a job there” was not admissible in the form in which it there appeared. The husband then sought to take up the issue. The learned Federal Magistrate suggested to him: "it doesn't really help. She, you’re [sic] your former wife, has told us what she's done". The husband replied: "Okay". The Federal Magistrate then added: "And her reasons why she's done it. It's a matter for her really", and then asked the husband whether he wanted to ask any other questions about her expenses, or anything else. It is difficult to know what the learned Federal Magistrate meant to convey by the last mentioned words, but realistically, the only admissible evidence in the passages referred to, given by the wife, was that she had just sent in her resume and done nothing else to seek to obtain employment. The balance of the matters thus far referred to were not admissible and could not properly be relied upon.
49. In re-examination counsel for the wife (transcript of 11 January 2006, page 46) sought to repair the damage which either cross-examination, or perhaps a realisation of the deficiencies in the evidence prior to that time, revealed in relation to the wife's capacity to obtain employment. The wife gave a non-responsive answer (line 16 and following) in relation to why it was that she chose to “undertake a Master of Arts degree majoring in English rather than pursuing a Masters degree following from [her] BBA”. Then counsel asked why she "did not pursue a MBA when [she] returned to India?" In the course of a largely non-responsive answer to that question, the wife suggested a number of things about job prospects in India. Quite apart from any questions of responsiveness, that was not evidence, the foundation for which was then, or at any other time, provided in evidence from the wife.
50. The foregoing, there is no doubt, represents the totality of the evidence upon which the learned Federal Magistrate found the wife's claim to have passed the threshold test "as a spouse in need of maintenance". As noted earlier, there was no objection to the evidence upon which that conclusion was based. True it is that her Honour was not obliged to direct the attention of the husband to any particular question or questions. On either of two bases, the Court finds the complaints in relation to this issue to have substance. There are, it is clear, as a matter of natural justice, certain aspects of proceedings in respect of which the Court has an obligation with respect to unrepresented litigants, and others where that obligation is less clear.
51. With great respect to her Honour, on something as fundamental as the threshold question which arose in this case, the failure to refer the husband to the inadmissibility of the evidence, or to take up with counsel for the wife, who, had the issue been raised, may have been able to cure those deficiencies, was, with great respect to her Honour, a failure to observe the guidelines which did result in the husband receiving less than natural justice.
52. If the Court is wrong in its primary conclusion, the Court would uphold this challenge on the basis that the evidence before her Honour, being clearly inadmissible, could not provide a sufficient foundation for the finding of fact made by her with respect to the threshold question. It does not follow that the fact that a litigant is in person and unrepresented means that the Court's satisfaction on the balance of probabilities with respect to the essential elements of what could be called "a cause of action", is in some way reduced or, as could be suggested to have occurred in this case, eliminated. The applicant had to prove her case. The statutory provision makes that clear beyond doubt. The learned Federal Magistrate, as a judicial officer, was constrained by the rules of evidence.
53. In his written submissions, learned counsel for the wife valiantly sought to defend the findings of fact of the learned Federal Magistrate in relation to the threshold question on the basis that such evidence was lay opinion evidence and thus admissible within the provisions of the Commonwealth Evidence Act. The Court does not necessarily accept that such was the case. On balance the issue appears to be one involving opinions based on specialised knowledge of, for instance, employment markets and things of that kind and thus attracting the provisions of s 79 of the Evidence Act, but even if lay opinion evidence was the basis upon which the evidence to which reference has been made could have been admissible, s 78 of the Act was not complied with in a way or to an extent which would have rendered that evidence admissible.
54. With great respect to her Honour, the combination of the factors to which reference has been made renders her conclusion with respect to the threshold question unsafe. The Court would accordingly uphold those challenges to her Honour's conclusions. Having done so, clearly her Honour's orders cannot stand.
55. It is, strictly speaking, unnecessary to deal with the second area of complaint to which extensive and persuasive written submissions have been made by learned counsel for the husband. That is, her Honour's finding in relation to the $265 per week reasonable weekly needs of the wife. Without expressing a concluded view in relation to the topic, it is regrettable that, although her Honour at times, in the passages to which learned counsel for the wife referred the Court, did suggest to the husband that he might like to cross-examine the wife on her expenses, with great respect, nowhere did her Honour appear, or has counsel been able to point to where her Honour did, in fact make clear to the husband the significance of those expenses, or his failure to refer her to specific aspects of those expenses.
56. With great respect to her Honour, her conclusions, both as to the comparative living standards between Australia and India and to the reasonableness or otherwise of $265 per week, were not matters supportable on the evidence before her. Were it necessary to do so, on balance, notwithstanding, albeit somewhat obliquely, the husband may be considered to have been alerted to the need to cross-examine the wife on her expenses or run the risk that they would be accepted, the Court would be inclined to uphold that challenge. Although, as is clear, had the learned Federal Magistrate made clear to the husband the consequences of failing to cross-examine, it would be the wife who could complain that $505 a week was impermissibly rejected as reflecting her reasonable weekly needs.
57. It is conceded by counsel for the husband, and sensibly so, that on a re-hearing of the proceedings the wife's claim would not necessarily fail and that as such this Court cannot accede to the husband's claim that the appeal be allowed and the wife's claim be dismissed. The matter will be remitted for re-hearing. Without wishing, as it were, to say any more than has already been said or is strictly necessary, the case, albeit in circumstances in which one must feel great sympathy for the learned Federal Magistrate, does highlight the desirability, if not the need, for making clear to litigants in person, briefly and as simply as possible, the relevant elements of the action before the Court, and when cross-examination is undertaken by the litigant in person, the likely consequences of failure to challenge in relation to particular matters.
58. With great respect to her Honour, one gets the feeling, reading the transcript from start to finish, that having not at the outset dealt with the matter in the way Re F guideline number nine suggests to be appropriate, things went “off the rails” as it were, and were never able to be put back on them.
59. Not without, as has hopefully been made patently clear, great sympathy for the learned Federal Magistrate in the circumstances in which she found herself, this Court's clear duty is to allow the appeal, which it has done. The appeal having been allowed by virtue of an error which enlivens the provisions of the Federal Proceedings (Costs) Act 1981, each party should have a Certificate with respect to the appeal and the re-hearing of the proceedings and the Court has so ordered.
ORDERS
That the appeal be allowed.
That orders 1, 2, 3 and 4 of Orders of 11 January 2006 be set aside.
That the proceedings be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Henderson.
That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.
That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.
That the Court grants to the each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
I certify that the preceding
59 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 10/07/06
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