Sebastian & Sebastian (No 2)

[2013] FamCA 19

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN (NO. 2) [2013] FamCA 19

FAMILY LAW – PRACTICE AND PROCEDURE – Ruling on admissibility of affidavit

Family Law Act 1975 (Cth)

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 23 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 23 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC with him Ms Johns

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr North SC with him Mr Gates

SOLICITOR FOR THE RESPONDENT: Moores Legal

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sebastian & Sebastian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6522 of 2010

Ms Sebastian

Applicant

And

Mr Sebastian

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This trial has reached the point of evidence where I am about to hear from a Chartered Accountant, Mr F, who is a partner of a Financial Services Firm.  He filed an affidavit on 5 December 2012.  Included in that affidavit were his professional qualifications and experience and I had no objection taken to those matters. 

2. Annexed was a report that he had undertaken upon the instructions of the wife and her solicitors, which essentially was to provide forensic accounting services to determine the financial position of the husband, to establish how the proceeds of sale of Business Y were applied and to ascertain expenditure since the date of separation, to assess income and to ascertain the current asset position of the parties or their related entities.

3. The report itself is a document of approximately 20 pages.  Annexed to that report and forming part of the very large folder of documents are statements, dollar sums and documents that are relied upon by the author of the report in expressing his views and reaching his conclusions. 

4. Lest it otherwise hereafter be observed by others I do understand that the document is voluminous and certainly does not comply with Family Law Rule 15.12.  I made that point at the earliest opportunity and again at the commencement of proceedings.  It does seem that practitioners in this case did not either read or apply the Rules.  Senior Counsel for the husband has objected to the admissibility of the affidavit and its annexures, to evidence given by Mr F and/or to reliance by the wife upon his report and conclusions.

5. Mr North had filed on 11 January 2003 his written notice of objection, which is taken to the whole of the affidavit and, accordingly, to all of the annexures to the affidavit.  I have read carefully the 11 paragraphs of that objection, though, with the passage of time, the husband has now had a more than reasonable opportunity to examine its contents.  Indeed, the husband has exhaustively responded to the report and identified many errors, omissions or additions thereto.  These matters are encapsulated with a reply affidavit of the husband filed before the court.

6. The objections to the report are as to admissibility, as to the opinions expressed and otherwise as to the content of certain documents which are said to be in breach of the Commonwealth Evidence Act.  The remaining parts of the objections are of a time-consuming or short-service basis or matters which largely have been overcome with the passing of time. 

7. In support of the use and admissibility of the document Mr Geddes produced a chain of correspondence to the court commencing 18 January 2012 and all of those documents are now before the court as exhibit “W47”.

8. I have read all of those letters.  I record that this matter was raised before me on or about 14 January of this year, the resumption of this hearing after the lengthy adjournment from August of last year.  Objection was then taken or, at least, foreshadowed by Mr North and this chain of correspondence was then before the court, together with an aide-memoire, which was not marked as an exhibit nor retained by the court and which was returned to Mr Geddes.  In addition to the chain of correspondence the orders that I made on 1 February 2012 and 20 June 2012 are relevant.  I have read all those documents which incorporate both the knowledge and the use of Mr F’s report in discussions and/or a private unsuccessful mediation.

9. Mr Geddes this morning sought to focus the relevance of Mr F’s  report to particular issues in this case.  By reference to exhibit “W33-C” and the add-backs sought by the wife in paragraph 7 thereof he identified subparagraphs (vii), (viii) and (ix) thereof.  In addition, and more generally, the issue of the wife’s expenditure, the husband’s expenditure and the standard of living which the income of the parties, the business or the sale of the business afforded them throughout the marriage and upon which the report and annexures are based are sought to be included in evidence.

10. Whilst I appreciate the efforts of Mr Geddes to somewhat fine-tune and focus the relevance and admissibility of the report to the add-backs, the reality is that it has a somewhat broader base.  I must approach its admissibility on that basis.  I am satisfied that Mr North does understand, not just the specific issues, but the broader base. 

11. It may be in final submissions the report will also be a document that both counsel can address upon, on the one hand by Mr Geddes to support his contentions of lack of proper disclosure by the husband, but, on the other hand, by Mr North to highlight the significant level of request for document(s) production and the investigation and involvement of the wife and, therefore, her solicitors on her instructions, in this financial matter where the length of the hearing and certainly the very substantial legal fees and disbursements are relevant matters.

12. I have, therefore, evaluated both submissions.  I also have a realistic approach that we are some 17 days or thereabouts into the hearing.  There have been matters of a financial nature touched upon or cross-referenced through the wife’s evidence, or through various submissions, and matters of this report are likely relevant to various related financial issues.  No doubt, I will hear more in the fullness of time.  I am told that evidence-in-chief will be extremely brief.  I am told that cross-examination will take some little time perhaps this afternoon as I am delivering these extempore reasons at about 2.30 pm this day.

13. All matters considered I will allow the use of, and reliance upon, Mr F’s report.  Thus the reality is that the annexures that substantiate, it is claimed, that report are also relevant notwithstanding the offensive manner in which they breach Family Law Rule 15.12.  I am somewhat fortified in that outcome because from the husband’s own reply affidavit before the court, his comprehensive response to, and comments upon, and challenges to certain aspects of the report.

14. Thus, there is no impingement upon any level of natural justice and the husband has had ample time to respond and it is certainly a subject with which he is well and truly familiar.  For those brief extempore reasons, which I will incorporate and, if necessary, expand upon in my lengthy reasons for judgment in this matter, which will one day be delivered, I intend to permit Mr F to give evidence, for the wife to rely upon his report and to enable cross-examination to proceed.  I will have these separate extempore reasons for judgment taken out and in due course they will be made available to all parties, but now the matter must proceed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 23 January 2013

Associate: 

Date:  29 January 2013.