Selwood and Selwood (No. 2)

[2013] FamCA 288

FAMILY COURT OF AUSTRALIA

SELWOOD & SELWOOD (NO. 2) [2013] FamCA 288

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking leave to reopen the evidence in final property proceedings – interests of justice – leave granted.

Family Law Act 1975 (Cth)

APPLICANT: Ms Selwood

RESPONDENT: Mr Selwood

FILE NUMBER: DNC 359 of 2010

DATE DELIVERED: 19 April 2013

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 19 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Rowbottom

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Mr Norrington

SOLICITOR FOR THE RESPONDENT: DS Family Law

Orders

1. Leave to the wife to re-open her case by calling Mr G to give evidence on subpoena and including the evidence in relation to the subpoenaed documents referred to.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Selwood & Selwood (No. 2) 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 DARWIN

FILE NUMBER:  DNC 359 of 2010

Ms Selwood

Applicant

and

Mr Selwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the application to reopen the case to rely upon the evidence of Mr G and documents produced in the subpoenaed material to which reference has been made, I take into account that the wife has closed her case and we are towards the end of the husband’s case when this application is being made.  I also take into account however that when deciding whether to permit the reopening of the case and calling fresh evidence I have to place considerable emphasis upon the natural justice to both parties in these proceedings.

2. My understanding of the authorities are that before deciding to give that leave I should weigh up the interests of justice and whether that requires I receive that evidence.  Part of that would involve me considering whether if I receive the evidence and then make findings that it is believable evidence, whether that would affect the end result.  In determining that there also has to be some consideration of whether the evidence relates to matters which should have been available before the wife closed her case.

3. In these circumstances the material upon which the wife seeks to now rely is material which relates to events which occurred very recently in relation to the husband now ceasing to carry on the business which has been the subject of dispute before this Court.  He now asserts he is working for another company.  It is maintained by the wife that the arrangements between the husband and his current employer (who is also his accountant) are significant in determining what the assets and liabilities and financial resources of the parties are and other matters which would relate to my determination of the property settlement proceedings.

4. If the wife is able to establish the matters to which her counsel have referred then it is possible that it would affect the decision-making in relation to the property settlement proceedings and assessment of other evidence. 

5. Clearly the material to which this relates is recent material which has come into existence because of regrettable delays in concluding this trial.  The witness has apparently been subpoenaed for Monday at 2.15 pm.  It is important to consider whether there would be any prejudice suffered by the husband in considering the evidence at this late stage.  It is evidence of his own interactions with the accountant and his employer.  It is therefore not likely to incur substantial prejudice for the husband save and except the risk of this trial continuing beyond the allotted three days.

6. I have already expressed serious concern about the need to conclude these proceedings and take into account that concern and risk but weighing up all of the factors I am satisfied that it is in the interests of justice and appropriate in these circumstances to allow the wife to present the fresh evidence and reopen her case by calling Mr G, presenting the evidence of Mr G and the relevant subpoenaed documents.  I give leave to the wife to reopen her case by calling Mr G to give evidence on subpoena including the evidence in relation to the subpoenaed documents.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 April 2013.

Associate: 

Date:  2 May 2013