Sebastian & Sebastian (No 4)

[2012] FamCA 708

FAMILY COURT OF AUSTRALIA

SEBASTIAN & SEBASTIAN (NO. 4) [2012] FamCA 708

FAMILY LAW – PRACTICE & PROCEDURE – Leave to file further affidavits during defended hearing

APPLICANT: Ms Sebastian

RESPONDENT: Mr Sebastian

FILE NUMBER: MLC 6522 of 2010

DATE DELIVERED: 17 August 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 17 August 2012

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

REASONS FOR JUDGMENT

1. I have before me an oral application made by Senior Counsel for the wife for leave to be granted to admit into evidence three affidavits.  They are affidavits of Ms N, Mr H and Ms J.  These three affidavits have been prepared by the wife’s solicitors.  It was foreshadowed some days ago that copies of the documents were given to or served upon the husband’s lawyers and, otherwise, three affidavits were provided to the Court, not initially to myself, but to my court officer.  Thereafter, and after further submissions, Mr North, Senior Counsel for the husband, consented to the three affidavits being filed but not placed on the Court file.  They are now marked as court documents 106, 107 and 108 in the index of the court file.  Having been so filed, they were entered onto CaseTrack.

2. I have now been asked to read the three affidavits.  I paused during the submission and indicated to the wife’s Senior Counsel that it might be more appropriate if he and his Junior Counsel identified any paragraphs or sentences in one or all of the affidavits that either were not relied upon or otherwise, on reflection as to content or admissibility, where issues could be removed on a preliminary basis.

3. I now have before me, as does Senior Counsel for the husband, the copy of each of the three affidavits with appropriate deletions.  Thus, what I am asked to rule as the first issue is whether or not leave be granted for these three affidavits in their amended, and therefore somewhat reduced, form to be filed with the Court.  The second question which would hereafter arise if leave be granted is whether there are further deletions of inadmissible or unhelpful material to the Court or whose weight or probity value adds little or nothing to the content of the document.  That is a subsequent matter that is to be addressed hereafter.

4. I return, therefore, to the primary issue for determination; that is, the granting of leave to the wife’s solicitors to have these three affidavits read by the Court.

5. Mr Geddes first said that there can be no prejudice to the husband or his legal advisors because they will have time, at least the weekend, given that it is now 2.45 p.m. on a Friday afternoon, and more likely a further and extended period given that the wife is designated as first witness and her cross-examination is most likely to commence next Monday at the earliest. 

6. Otherwise, Mr Geddes said that his client and solicitor where somewhat taken by surprise in that on 7 August, when there was a filing of all affidavits required by case management order, the husband caused to be filed on his behalf affidavits from a number of witnesses that were unexpected.  In particular reference is made to the witness D, the husband’s parents and, perhaps but not necessarily, Mr R.  Clearly, insofar as the husband filed his primary affidavit, there could be little or no surprise to the wife or her legal advisors as to the matters which the husband deposed.

7. The other background matter is that there was a split of issues.  Formerly, both section 79 division of property and parenting and children’s issues were to be heard, but prior to 7 August, the hearing was split and this case now involves only division of property matters.

8. Mr North has not conceded the issue of prejudice.  He has further identified that the wife’s solicitors should have been better informed, better prepared, and their affidavits should have been filed expecting all contingencies.  He asserted that was not unreasonable.  He said that the wife should have understood, as should her solicitors, that documents would likely have been filed supporting the legal arguments and his factual assertions.

9. Further, Mr North asserted that the affidavits are not merely responsive.  There are matters – in particular, he has identified the affidavit of Ms N as of most concern – which might require further evidence to be called which challenge the integrity, the behaviour, the conduct or the honesty of his client, particularly in paragraph 14, or otherwise where credit is highlighted.  Mr North has reinforced that he would expect credit to play a role in this case and that a Judge, as they often do, would be expected to make findings of credit that are relevant to a determination of issues and/or an assessment of the parties and provide a proper explanation for orders made.

10. I carefully balance and evaluate the submissions.  I am, of course, mindful of the case-management orders that I have made.  I am aware that the documents were effectively exchanged and that there was not, because time did not permit, the usual week or two for the responding party to assess the evidence of the applicant and, thereafter, for the applicant to seek leave to file any other material.

11. On balance, and without the intention of extending the hearing timetable, but bearing in mind the overall obligation of the Court to do justice to both parties and that it is the just and equitable outcome of the property division that must be uppermost in the mind of the Court, and knowing that there will be a further delay in the final hearing of this case, and that there are other means by which the Court might, if called upon, be able to address financial issues or inequalities or financial prejudices to one or other of the parties, then these matters can be subsequently addressed.

12. I will give leave to file and rely upon the three affidavits in question.  I conclude that is a just and proper outcome.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 17 August 2012.

Associate: 

Date: