Stoney & Stoney (No 2)

[2012] FamCA 222

FAMILY COURT OF AUSTRALIA

STONEY & STONEY (NO 2) [2012] FamCA 222

FAMILY LAW – PRACTICE AND PROCEDURE - Refusal of leave to call further evidence after case is closed

Family Law Act 1976 (Cth)
Family Law Rule 2004

APPLICANT: Ms Stoney

RESPONDENT: Mr Stoney

FILE NUMBER: MLC 7569 of 2010

DATE DELIVERED: 27 March 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 27 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Ms Stoikovska

SOLICITOR FOR THE RESPONDENT: Adrian Abrahams Family Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stoney & Stoney (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 MELBOURNE

FILE NUMBER: MLC 7569 of 2010

Ms Stoney

Applicant

And

Mr Stoney

Respondent

REASONS FOR JUDGMENT

1. In this matter the evidence is almost concluded.  All that remains is the re-examination of the husband.  The wife has given her evidence.  The matter was originally listed for hearing over three days before me several weeks ago.  It resumed yesterday and the husband was cross-examined for the bulk of the day.  Mr Wilson makes an application this morning to re-open his case to tender various documents.  These are documents said to have been downloaded by the wife, from the internet, of and related to a Visa issue.  The husband’s partner is from Ukraine and has been in this country for some limited time.  She is here on a Tourist Visa.

2. The husband’s affidavit has previously set out limited information of and concerning that Visa and his assertion has been that she cannot work and that he supports her.  The partner, that is Ms L, has not filed an affidavit, was not subpoenaed to give evidence and has had no part in these proceedings, save for the mention of her name and circumstances.  Evidently, on or about 9 March, the wife accessed information and provided same to her legal advisers, either then or at recent times.  As I say the husband was not cross-examined on the particular issues of his now partner’s Visa, of her employment or right to earn circumstances.

3. Mr Wilson this morning foreshadowed an application for leave to re-open his case to introduce, by way of further tendered exhibits, documents by way of downloaded information from the Department of Immigration as to Visa particulars.  I have indicated, quite firmly, that I will not entertain any such application.  Put simply, the Rules are the Rules.  There are experienced practitioners, both solicitor and counsel, appearing for the wife and they know that their case is closed, they had every opportunity to introduce evidence if they were provided with that by their client, they have prepared meticulously most aspects of her case, the husband was cross-examined at length and with vigour on various issues, including on Ms L, the circumstances of her coming to Australia and the cost of her final visit and her two earlier holidays in this country.

4. I do not intend to grant leave for the application to be made.  The case is long closed.  I need to afford justice to both parties in this case.  The Rules are very simple;  you call your evidence when it is your turn.  Particularly, in this case, the intervening period allowed ample time for that information to be provided to practitioners and for a leave application to have been made yesterday for introduction of further material or, more particularly, for the husband to have been cross-examined at large on relevant information that was available to the wife.

5. The simple fact is the information has been available for several weeks, the wife’s case is closed, the husband’s cross-examination by her counsel has concluded and I will not re-open the case.  To do so would be an injustice to the husband in then having to obtain further evidence.  I will not pronounce a formal order, there has been no leave given to Mr Wilson, he understands that and I will not entertain the submitting of any further documents.

I certify that the preceding five (5) paragraphs
are a true copy of the reasons for judgment of the
Honourable Justice Young delivered on 27 March 2012.

Associate: ……………………………………………………………

Date:  …………………………………………………………………