SCHOREL & SCHOREL (No.2)

[2020] FCCA 921

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHOREL & SCHOREL (No.2) [2020] FCCA 921

Catchwords:
FAMILY LAW – Reasons in respect of evidentiary ruling.

Legislation:

Family Law Act 1975 (Cth), s.79

Evidence Act 1995 (Cth), ss.39, 55

Applicant: MR SCHOREL

Respondent: MS SCHOREL

File Number: SYC 8325 of 2015

Judgment of: Judge Obradovic

Hearing date: 4 March 2019

Date of Last Submission: 4 March 2019

Delivered at: Parramatta

Delivered on: 29 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Cummings

Solicitors for the Applicant: Walter & Elliott Family Lawyers

Counsel for the Respondent: Mr Lethbridge

Solicitors for the Respondent: Barkus Doolan

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 8325 of 2015

MR SCHOREL

Applicant

And

MS SCHOREL

Respondent

REASONS FOR JUDGMENT

1. During the hearing of this matter, the Court rejected a tender of a document by the respondent wife during her re-examination.

2. Counsel for the husband cross-examined the wife in respect of a letter dated 3 December 2018 from the wife’s solicitors to Ms Langsford regarding the Schorel Family Trust and A Pty Ltd. The wife was cross-examined as to a response, which had been received from Ms Langsford. In re-examination, Counsel for the wife showed the wife a further document and asked if that was the response to the document received by Ms Langsford. The wife confirmed it was. Counsel for the wife tendered the document, with the husband’s Counsel objecting to the tender. The objection was upheld. The wife sought reasons in respect of that evidentiary ruling.

3. Proceedings brought pursuant to s.79 of the Family Law Act 1975 (Cth) are subject to the rules of evidence, and consequently, the Evidence Act 1995 (Cth) applies in respect of financial proceedings such as the present.

4. The Evidence Act makes it clear that re-examination of a witness is limited to matters arising out of evidence given by the witness in cross-examination, unless the Court gives leave for other questions to be put.[1] As such, re-examination is confined to matters where the cross-examination has left an inaccurate, incomplete or unclear picture[2].

   [1] Section 39

   [2] See generally Odgers, Uniform Evidence Law 14^th ed. at [EA.39.120] as to the position at common law which has remained the same under the provisions of the Evidence Act.

5. The cross-examination was of a limited nature. The document sought to be tendered did not arise out of the cross-examination. Furthermore, the document is hearsay and the exception to the hearsay rule has not been made out. Lastly, the document is evidence of an opinion, and as such not admissible except if one of the exclusions to the opinion rule applies. The exceptions to the opinion rule were not made out.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 29 April 2020