Su v Chang
[1999] FamCA 1203
•2 September 1999
[1999] FamCA 1203
REPORTABLE VERSION - EVIDENCE ISSUES ONLY
FAMILY LAW ACT 1975IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No EA 98 of 1998
AT SYDNEY File No SY 8088 of 1995BETWEEN:
SUSIE SU
Appellant Wife
- and -JAMES CHANG
Respondent HusbandREASONS FOR JUDGMENT OF THE FULL COURT
CORAM: FINN, KAY and MUSHIN JJ
DATE OF HEARING: 3 and 4 May 1999
DATE OF JUDGMENT: 2 September 1999APPEARANCES: Mr Thomas of Counsel, instructed by Maggie Wong & Associates, Solicitors, 5/183A Forest Road, Hurstville NSW 2220, appeared on behalf of the Appellant Wife.
Mr Levet of Counsel, instructed by Mark Kennedy & Co., Solicitors, Suite 702, Level 7, 370 Pitt Street, Sydney NSW 2000, appeared on behalf of the Respondent Husband.
SU and CHANG
EA 98 of 1998
Coram: Finn, Kay and Mushin JJ
Date of appeal: 3 and 4 May 1999
Date of judgment: 2 September 1999PROPERTY – Complex property proceedings involving overseas assets – Litigant in person acting through an interpreter – Parties’ credit criticised at trial – Trial Judge’s failure to abide by statement that he would only accept agreed evidence or evidence by admission contrary to interest – Inadequate findings to make a s 75(2) adjustment – No findings or reasons for dismissing spousal maintenance application – General inadequacy of reasons
Shortly after marrying in 1993, following a year's pre-marriage cohabitation, H and W migrated to Australia from Taiwan with W’s two children from a previous marriage. Their only child was born shortly afterwards and was aged five at trial. The parties separated in 1995. W lived with her three children in the former matrimonial home in Sydney and H travelled between Taiwan and Australia. W had been a prominent journalist in Taiwan with business interests, and H was a businessman from a family that controlled one of Taiwan’s top 500 companies. By the time of separation W had no income and substantial debts.
W brought property proceedings at which she was self-represented and conducted her case through an interpreter. H was represented by counsel and gave his evidence through an interpreter. The extensive documentary evidence was largely translated from Chinese. Taiwanese law, business practices and cultural values were relevant to the proceedings. These factors added to the complexity of the trial Judge’s task.
The issues before Rowlands J were focussed on ascertaining the extent of the asset pool in circumstances where it was alleged that H in particular had failed to make proper disclosure of his overseas assets and income; determining an appropriate alteration of property; providing child support; determining the level of spousal maintenance; and refunding moneys W had lent to H. Among the orders sought by W was that she retain the former matrimonial home.
W asserted that H was a very wealthy man to whom money was everything and honesty was nothing. She claimed that H had inter alia breached Australian immigration law, breached Taiwanese tax law, committed child abduction, given false testimony, stolen her and her family’s money, tried to stop her pension, attempted to have her deported, and not met his child support obligation. H’s case was that he was not a wealthy man and suffered from a serious illness, and that W had a significant earning capacity in Taiwan and had not fully disclosed her financial position. H had complied with a spousal maintenance order in the sum of $300 per week but not made any child support payments.
In a short judgment his Honour criticised both parties’ evidence, commenting that he was left with a feeling of unease about the material before him and would only act on material on which there was substantial agreement or admissions made against interest. The asset pool was found to be c$770,000. This included interests totalling c$407,500 that W had been slow to disclose. His Honour said he was unable to act on suspicions raised by W about H’s offshore interests.
Contributions were viewed as equal. A 10% adjustment was made for the s 75(2) factors so that W was to take 60% of the c$770,000 pool since she had the care of the parties’ child. The orders made enabled H to retain the former matrimonial home (in which there was no equity). W’s spousal maintenance application was dismissed.
On appeal, W, represented by counsel, challenged his Honour’s determination of the extent of the asset pool, the division of the pool and the dismissal of her claim for spousal maintenance.
Held, in allowing the appeal for inadequacy of reasons:
· It was open to his Honour to use a hybrid of the global and asset by asset approaches (Norbis) to identify H’s interest in his deceased father’s estate but isolate it from his consideration of contributions to the assets.
· His Honour found that the parties had made equal contributions to the assets which totalled c$770,000. W’s 50% share of c$770,000 was 30% of the entire assets of the parties including the inheritance. This 30% was at the lower end of the permissible range.
· Some weight had clearly been given to the inheritance when making the s 75(2) adjustment (see consideration of proper weight below).
Ground 3 - A general inadequacy of reasons.
And
Ground 5 - An inability to ascertain what evidence was relied on and ignored.· The trial Judge was bound by the Johnson guidelines on obligations towards unrepresented litigants.
· W complained that the trial Judge said he would disregard the parts of her affidavit that did not comply with the rules of evidence, leaving her unaware of what was in evidence. W’s case however failed at trial for reasons unrelated to any uncertainty caused by this approach.
· The Evidence Act s 190 allows the waiver of certain rules of evidence by formal order. The failure of a represented party to complain at trial that an “optional rule” of evidence was breached without the making of a formal order would generally be fatal to any objection taken on appeal.
· By comparison, a trial Judge has an obligation to give a litigant in person an opportunity to be heard on whether a discretion to admit otherwise inadmissible evidence should be exercised (S v R). The significance of a breach of this rule depends on the circumstances of a case. Here the trial Judge did not rely on the material that W challenged as improperly admitted.
· According to W, H had cited assets of more than A$4.55m in an immigration application which was in the possession of the Court. His Honour erred in failing to pursue enquiries as to whether the document contained admissions against interest by H. However, absent an application to admit the document as fresh evidence on appeal, the Full Court was unable to interfere with the judgment on this basis.
· His Honour failed to give adequate reasons (Merriman) for including in the pool a Taiwanese unit as the one major asset belonging to W when it was common ground that the interest had been frozen by a Taiwanese court.
· The trial Judge stated that he would only rely on evidence about which there was substantial agreement or admission made against interest, and failed to give adequate reasons for departing from this approach when he accepted H’s account of his disposition of moneys from a share sale.
Grounds 4, 8 & 9 - The s 75(2) adjustment was manifestly inadequate.
· In determining that there should be a 10% adjustment in favour of W for the s 75(2) factors (6% of the entire assets) his Honour relied on certain findings. Inadequate reasons were given for the findings that W and H had good earning capacities where W had the care of a young child and inadequate command of English to work as a journalist in Australia, and H suffered from illness. Questions of the payment of child support were overlooked entirely.
Ground 7 - The dismissal of the spousal maintenance application with no valid reasons given.
· Spousal maintenance was clearly a live issue in the proceedings and the judgment was entirely silent as to why it was dismissed. Even if the rest of the judgment had been allowed to stand, this issue would have to be remitted. Insufficient findings were made to enable the Full Court to determine whether an order for spousal maintenance was appropriate.
Appeal allowed
Remitted for retrial
Costs certificates granted to W and H for the costs of the appeal and to H for the costs of the retrial (W not having been represented at trial)
(Reportable on the evidence issues only)1. This is a wife’s appeal against orders made by Rowlands J on 30 October 1998 in property and spousal maintenance proceedings. The trial Judge ordered a 60/40 division of property in favour of the wife and dismissed her spousal maintenance claims. The wife complains about the size of the pool of assets determined by his Honour, the division of that pool and the dismissal of her maintenance claim.
Background
2. Each of the parties was 44 years of age at the time of the hearing before the trial Judge. Until 1993 they had lived most of their lives in Taiwan. …
3. The parties married on 13 July 1993. They have one child F who was born on 11 September 1993. The wife has two children from a previous marriage to Hong Yi Huang who were born in December 1980 and April 1983.
4. The husband and the wife migrated to Australia shortly prior to the birth of F, and the wife and her children have lived in Australia since that time.
5. The parties separated in August 1995 and the marriage was subsequently dissolved in May 1997.
6. At the trial the wife appeared in person and the husband was represented by counsel. Both parties gave their evidence through interpreters.
…
8. The wife relied on several statements of financial circumstances and on two affidavits and the annexures thereto. Her primary affidavit was 105 paragraphs with approximately 100 pages of annexures, including many documents in the Chinese language. The husband’s affidavit of evidence-in-chief was a ten page document, with about 60 pages of exhibits, including many in the Chinese language.
…
Orders sought at trial
…
36. In her Outline of Case Document at the trial the wife said:
"The orders the wife currently seeks have three parts:
1.the matrimonial home in Sydney and in Taipei;
2.the spousal maintenance and child support;
3.the funds which the husband borrowed from the wife as part of his business."
37. In issue before his Honour were the spousal maintenance claim and the claim for alteration of property interests that focussed mainly on the size of the pool of assets. The wife’s assertion was that the husband was totally untrustworthy and that he, together with members of his family, had conspired to defeat her claims. She asserted that he was a man of vast wealth who could well afford to meet what she described as a claim for “only a small portion of the properties which the husband can control” (Appeal Book 28).
38. By way of contrast, the husband asserted that he was a man of comparatively modest means and in poor health. He asserted the wife had a significant earning capacity in Taiwan as a financial journalist and newspaper executive and that the wife had not properly disclosed her financial resources.
The judgment
39. His Honour’s judgment is short and it is convenient to include sections of it in these reasons for judgment (with emphasis added). His Honour said:
"…I did not have confidence in the evidence of either the husband or the wife. I was left with the impression that each was prepared to present their evidence as if an advocate for a favoured result rather than as a witness who was fully prepared to carry out the obligations of a witness.
Indeed the only material I feel able to safely act upon is that upon which there appears to be substantial agreement or admissions are made against interest.
I was not comfortable with the quality of supporting evidence.
The husband relied on affidavit and other material, particularly on affidavits from Taiwan, which were not tested. His sister, who gave evidence on his behalf, was clearly in his camp.
…
The wife, in person, attacked the husband’s case vigorously asserting strongly that the husband had many more assets than he revealed. While this assault left me with unease in relation to the extent of the husband’s disclosure, the wife did not present material or gain concessions from him which significantly shook his position.
…
The wife’s wide-ranging claims that the husband had:
· cash (available to him from loans, the sale of assets and with brokers)
· shares
· more real estate
· a definable interest in his father’s estate
were not supported by cogent evidence upon which I could act.
I was left, as earlier suggested, with an unease both as to the truthfulness of the allegations made by the wife and also as to frankness of the husband in relation to his business dealings which appear to have been more successful in the past than at present.
The wife’s extensive but unstructured cross-examination of the husband raised my suspicion in relation to his share dealings and other transactions. However, I cannot act on suspicion.
…
However, in approaching the case in the manner outlined, treating the evidence of each party with particular caution, it appears, in the end, appropriate to find in relation to property that:
1.The husband presently has equity in real estate amounting to $305,474.
2. The husband has chattels worth about $57,000…
3.The wife has a notional asset of $390,000 being the interest in the unit in Fu Yuan Street, Taipei she mortgaged or transferred to her first husband.
4.The wife has money in banks in Taiwan, to which she has access, of about $17,500.
While each party lists debts in accordance with the approach I have taken, I do not find that these are established to my satisfaction in the absence of admissions or other satisfactory material.
The parties net property is then $769,974.
…
Having established the pool of assets, it is now proper to consider the contribution factors …
…
The husband as an entrepreneur had the primary breadwinning function. The wife as the homemaker, child carer and business woman had a role of corresponding importance.
Apart from the husband’s significant early contribution it would be appropriate to view contributions as equal.
…
Coming now to the so-called “needs” considerations, those matters with which Section 75(2) of the Act is concerned.
…
Particularly because of the wife’s ongoing responsibility to the parties’ small child, and having regard to all the relevant factors, it appears appropriate to move the apportionment in the wife’s favour so she receives 60 per cent of the net property. This will result in her receiving $461,984 and the husband $307,990 (40%) of the $769,974. …"
The appeal
…
A general inadequacy of reasons in reaching conclusions on all of the matters in dispute.
and
An inability to ascertain what evidence was ultimately relied upon and what evidence was ignored.
(Grounds 3 and 5)
[Ground 3] That His Honour erred in law in that he failed to give adequate reasons to support his findings of fact.
[Ground 5] That His Honour erred in law in that he:
(a)allowed Counsel for the husband to lead evidence in examination in chief.
(b)did not invite the wife to tender documents in support of her case.
(c)did not make a ruling at the start of the case, or at all, as to the portions of the affidavit material which were to be excluded pursuant to the rules of evidence.
(d)Did not make a ruling at the start of the case, or at all, as to the affidavit material which was admissible.
52. It is convenient to deal with both of these issues in the one general discussion.
The Johnson guidelines – Litigants in person
53. Significant attention was given in the submissions of counsel for the appellant to the manner in which the trial Judge needed to approach his task in this case given that he was dealing with a highly complicated financial case involving a litigant in person whose mother tongue was not English. In Johnson v Johnson (1997) FLC 92-764; 22 Fam LR 141 the Full Court set out what it saw as the obligations that trial judges have when hearing cases involving unrepresented litigants. The Court said at FLC 84,421; Fam LR 163:
"1. To inform the litigant in person of the manner in which the trial is to proceed, the order of the calling of witnesses and the right which he or she has to cross examine the witnesses;
2. To explain to the litigant in person any procedures relevant to the litigation;
3. To generally assist him or her by taking basic information from witnesses called, such as name, address and occupation;
4. If a change in the normal procedure is requested by the other parties, such as the calling of witnesses out of turn, to explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
5. If evidence is sought to be tendered which is or may be inadmissible, to advise him or her of the right to object to inadmissible material, and to enquire whether he or she so objects;
6. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
7. To ensure as far as possible that a level playing field is maintained at all times;
8. To attempt to clarify the substance of the submissions of unrepresented parties, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150))."
54. Counsel for the appellant submitted that there were some fundamental breaches of those guidelines, in particular guidelines 2 (explaining relevant procedure) and 7 (maintaining a level playing field), which rendered the decision of the trial Judge so unsafe as to call for a retrial of the application. We will return later in this judgment to consider the validity of this general submission (see in particular paras 93-94). Before doing so, however, we will consider the complaints concerning the specific issue of the admissibility of evidence in proceedings where one party is unrepresented.
Evidentiary rules and litigants in person – The wife’s affidavit
55. Prior to the commencement of evidence Mr Levet, counsel for the husband, said (Appeal Book 772):
"Your Honour, before we kick off I would seek your Honour's guidance in one area. Your Honour as to the affidavit of the wife it is normally my practise (sic) to ask the presiding Judge to simply ignore those parts in the deponent's affidavit which do not comply with the Rules. Having read Mrs Su's affidavit, very large tracts of it are inadmissible as being either (a) argument or (b) opinion or (c) hearsay or (d) conclusions drawn by her …
...
I suppose my problem basically, your Honour, is that my normal practise is to simply ask the Bench to disregard, however, there are such huge tracts of it in the present instance that I will possibly be left wondering what material it is you are relying upon."
His Honour replied (at 773):
"Well, insofar as matters are irrelevant, you can assume [I will not] have regard to those matters. Hearsay appears to pose no problem if all hearsay is excluded but it may be convenient for some hearsay to be received on a consensual basis, as it often is.
...
MR LEVET: Yes, your Honour. Your Honour, I do not intend to take each objection, we will be here till lunchtime...but I simply indicate to your Honour that I have problems with major parts of the wife's affidavit.
HIS HONOUR: Yes. Let me take this up with the wife."
56. His Honour then explained concepts of relevancy, opinion and hearsay and said to the wife:
HIS HONOUR: Now, do you want to say anything about what I have just been saying?"
The wife replied via the interpreter "Thank you for your guidance."
57. The transcript then discloses that his Honour provided the wife with copies of s 79 and s 75 of the Family Law Act.
58. What is now complained about is that at that stage of the proceeding the wife could not have been aware of what portions of her material had remained in evidence as admissible and what portions would be ultimately not relied upon. Her affidavit material contained numerous assertions about facts about which she had little direct knowledge. Whether or not the trial Judge would ultimately have relied upon the wife's knowledge in these areas as proof of the matters to which they attested, or would have rejected them, could not have been known to the wife.
59. His Honour's response to Mr Levet's plea for understanding why he was not objecting to the affidavit material line-by-line was contained in discussion with the wife as follows:
"Now what I said to counsel is that I would be sympathetic to your conclusions and that if they are matters which he thinks I am likely to act upon, he should ask you for particulars. For instance, if you say something normally you would be expected to give dates and facts leading to that conclusion. What I have said to him that is something he should ask you about if he thinks that it is going to be something I am going to rely upon."
60. It was submitted that, just as counsel for the husband had told his Honour that he would be possibly left wondering what material it was that the trial Judge was relying upon, so the problem for the unrepresented wife, in conducting a case in a foreign language, must have been all the more magnified. In such circumstances it was submitted that there was a fundamental miscarriage of justice because the wife could not possibly know what evidence would be left available and where she might need to plug gaps in her case.
61. It seems to us that the trial Judge's ruling to leave everything in unless counsel for the husband sought particulars which would demonstrate the wife's lack of direct knowledge, cannot be said to have worked an injustice to the wife. If anything it might have left the husband feeling aggrieved because he did not know what case he had to meet.
62. The wife’s case failed because his Honour was not satisfied that she was entirely reliable. It also failed because his Honour was not satisfied she had proven the necessary elements of her case on the balance of probabilities. It did not fail because his Honour led her into any false sense of security about matters which she might have thought she had proven, but about which evidence was rejected because it was not in admissible form. Nor did it fail because there were gaps in the evidence which the wife might have reasonably believed she had covered in inadmissible portions of her affidavit material.
63. The Court is obliged to determine disputes before it according to the rules of evidence. It is also obliged to act in accordance with s 97(3) of the Family Law Act 1975 which provides:
"In proceedings under this Act, the court shall proceed without undue
formality and shall endeavour to ensure that the proceedings are not protracted."
Therein lies a dilemma of which this case is a good example.
64. The wife's affidavit clearly appears to have offended, in some respects, each of the areas complained of by Mr Levet, namely it was argumentative and contains the witness's opinions, significant hearsay and many conclusions drawn by the deponent. To have sorted through the document line by line would have taken many hours. To have expected the unrepresented litigant to be able to adequately deal with the subtleties of the law of evidence and the complexities of the provisions of the Evidence Act was unrealistic. Yet to let the affidavit in subject to the general ruling along the lines of "I will disregard that which I think does not comply with the rules" leaves neither party knowing exactly what the case is he or she faces or where there might be evidentiary deficiencies in the respective cases.
65. The rules of evidence are mainly, but not exclusively, to be found in the Evidence Act 1995 (see CDJ v VAJ (1998) FLC 92-828; 23 Fam LR 755). The Act, however, contains a provision for a waiver of certain of the rules. Section 190 provides as follows:
"(1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of:
(a)Division 3, 4 or 5 of Part 2.1; or
(b)Part 2.2. or 2.3; or
(c)Parts 3.2 to 3.8;
in relation to particular evidence or generally."
66. Division 3 of Part 2.1 is headed "General rules about giving evidence". Division 4 is headed "Examination in chief and re-examination". Division 5 is headed "Cross-examination".
67. Part 2.2 contains the law applicable to admissibility of documents, and Part 2.3 contains the law applicable to the adducing of other evidence and taking of views.
68. Parts 3.2 to 3.8 include the law regarding the hearsay rule, opinion evidence, admissions, the effect of prior judgments, tendency and coincidence, credibility and character evidence.
69. One section of the Act that is not included amongst those capable of being waived by the parties' consent is the provision of Part 3.1, which is that the court cannot admit into evidence irrelevant evidence unless otherwise provided for by the Act.
70. These consent provisions give the parties to proceedings a significant degree of control over the application of the rules of evidence to the proceedings. Whilst s 190 enables the court to dispense with the application of any one or more of the parts of the provisions of the Act if the parties consent, it is required by the statute to do so by order. Where parties are represented, the failure of a represented party to complain at the hearing that any of these "optional" rules of evidence was being breached would generally be fatal to any objection subsequently taken on appeal. The failure to actually formally pronounce such an order in circumstances where each party is competently represented would not, in our view, render the proceedings nugatory.
71. The position, however, is significantly different when dealing with a litigant in person. In S v R (1999) FLC 92-834; 24 Fam LR 213 the Full Court dealt with an appeal in a case which involved, amongst other things, the taking of telephonic evidence from significant witnesses, and the admissibility of a hearsay copy of a purported record of interview. The Court held at FLC 85,675-676; Fam LR 229-30 that where the Court had a discretion to exercise under the Evidence Act, and the case involved a litigant in person, the Court had an obligation to give to the litigant an opportunity to be heard on whether or not such a discretion should be exercised:
"Given that the father was representing himself, and given the nature of the proceedings, it was essential that the trial Judge remained alert to the manner in which the evidence in this case was obtained, to its admissibility and to its probative value. Where there was a discretion to be exercised concerning its admission, then the father had to be given a fair opportunity to argue as to why that discretion should have been exercised in his favour. It is not apparent from either the transcript or his Honour's judgment that adequate opportunities were offered.
The self litigant's right to be told what might be objected to
It was put to us on behalf of the wife that there had been no miscarriage of justice in the manner in which the proceedings were conducted. It was put that the obligation of the trial Judge ends with the trial Judge providing the opportunity to place objections and does not require the trial Judge to explain the nature of the objections that may be taken. In our view, such submission is inconsistent with Guideline 6 as laid down in Johnson, supra, namely:
'If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.'
By extension, if a question is to be asked or a document is sought to be tendered which prima facie is inadmissible and which goes to the very core of the subject matter of the proceedings and where the ramifications of the proceedings are as Draconian as they might be in this case, namely that the children may never see their father again, then there is a very heavy onus placed upon the trial Judge to ensure every opportunity is properly provided to the litigant in person to raise objections which one would expect may well be taken by competent counsel. Clearly if the dispute is a minor one, such as whether contact should commence at 7.00pm or 8.00pm on any particular night, then the Court may, in the interests of expediency, place more emphasis on s.97(3) of the Family Law Act which directs the Court to proceed without undue formality, than might otherwise be the position where the outcome of the case may lead to (a) a total prohibition on contact between a parent and a child or (b) the continuation of contact between a parent and a child where the child is possibly at serious risk if that contact continues (the sex abuse case dilemma).
In his response, counsel for the Children’s Representative submitted that the trial Judge should have given the husband an informed opportunity to take objection to the admission into evidence of the police report in the manner in which it was presented. At the same time, notwithstanding other procedural irregularities, such as allowing the evidence to be taken by telephone without discussing the ramifications of such a course with the husband, and in the face of actual opposition by the Children's Representative, insofar as Mr Erskine was concerned, the Children's Representative submitted that the appeal should not be allowed as any retrial would be unlikely to produce a different outcome. He referred us to the passage from Stead v State Government Insurance (1986) 161 CLR 141 at pp. 145-6 cited at para.114 of Johnson, supra, and in particular, the question posed by the High Court as to whether complying with these rules would have made any difference. The High Court said:
'The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v. National Coal Board [1957] 2 QB 55 at p. 67 in these terms:-
"There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
…
It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.'"
72. The significance of the breach of such a rule in any one case must depend upon the particular circumstances of the case. Clearly if some marginally relevant but otherwise inadmissible evidence is received in evidence because of a failure to seek submissions on whether or not the rules of evidence should be dispensed with under the mistaken apprehension by the trial Judge that there was consent being given, then the Full Court is unlikely to interfere with the verdict. If, however, the rules being waived led to some controversial evidence being admitted and not properly tested in circumstances where it was not clear that the parties had consented to a dispensation with the rules, or if they had so consented they had done so without full awareness of the ramification of such consent, then the Full Court may more readily intervene in the proceedings and consider the end result unsafe.
73. In order to ascertain whether there was a sufficiently significant breach of the failure to formally rule on the waiver of the rules of evidence, this case requires some further analysis of the areas in which it is said that inadmissible evidence was relied upon.
Affidavits by overseas witnesses
74. In the course of addressing us generally as to whether or not the wife received a fair trial, counsel for the wife drew our attention to some passages concerning the availability of the husband's witnesses and the admissibility of the affidavits in the event that they were not required for cross-examination.
75. The husband's counsel opened the case by informing his Honour that there were affidavits from a number of deponents who were resident in Taiwan. The trial Judge was informed that notices had been provided by the husband, purportedly pursuant to s 67 of the Evidence Act, seeking to rely upon absent witnesses, and that a fax had been received on 9 July 1998, from solicitors who were then acting for the wife, advising that those witnesses were required to attend for cross-examination.
76. The wife indicated to the trial Judge that she thought the law was that if the parties could not attend to be cross-examined then the court could not rely upon their affidavits, and the trial Judge said:
"I will have a look at the law more carefully but it may be that I can say the affidavits have to go away and cannot be used, it may be that I can say the affidavits can be used but I must remind myself that you have not had a chance to test them and therefore I have to be more careful before I rely on that evidence." (Appeal Book 763).
77. The wife indicated that she understood that the witnesses could readily come to Australia and his Honour said (Appeal Book 765):
"I will allow you to give evidence of that fact when you’re in the witness box and if I don't ask you, you should remind me that you’re in a position to give that evidence. Did you at any stage say that you wanted those witnesses present?
THE INTERPRETER … I have sent them a formal letter about it.
HIS HONOUR: I will not make up my mind absolutely at this stage but I am inclined to receive the evidence that (sic) only give such weight as the circumstances suggest is proper given that you have not had the opportunity to ask those witnesses questions..."
78. At the end of the third day of the hearing his Honour again turned to the issues of the admissibility of the evidence from other witnesses and said (Appeal Book 950):
"I thought I had given an indication that I was inclining to the view that they be received as affidavits in which the deponents have not had their evidence tested by cross-examination so that the evidence would be received but I would have to constantly remind myself that they had not been tested by cross-examination. That is my inclination.
MR LEVET: But in so reminding yourself that, your Honour, my submission would be that we had complied with s 67 of the Act in fact."
79. The discretion which the trial Judge needed to exercise in respect to the admissibility of this evidence was not the discretion urged upon him by counsel for the husband, namely pursuant to s 67 of the Evidence Act, but was that given to the trial Judge pursuant to provisions of Order 16 rule 10 of the Family Law Rules. Those Rules provide:
"1.A party may require a named deponent to attend for cross-examination, by written notice given to a party by whom an affidavit was filed.
2.If a party requires a deponent to attend for cross-examination and the deponent fails to do so, the court or a Registrar may,
(a) refuse to allow the deponent's affidavit to be used; or
(b)allow the affidavit to be used only on terms directed by the court,... or
(c)adjourn the proceedings until the deponent attends for cross-examination."
80. In order to properly exercise that discretion, it would be necessary for the Court to give consideration to matters similar to the exercise of the discretion to admit hearsay evidence in civil proceedings if the maker of a statement is available, as is contained in s 68 of the Evidence Act, such as whether the attendance of the deponent would cause undue expense or undue delay or would not be reasonably practical. The Court would also need to pay attention to Family Law Act s 97(3) (above) (see also re O'Neil (Dec') [1972] VR 327 at 333 and re O'Brien; Ex parte Allchurch [1923] SASR 411).
81. A notice pursuant to s 67 of the Evidence Act is applicable where hearsay evidence is sought to be relied upon, either because the maker is not available or calling the maker would cause undue expense or undue delay or would not be reasonably practicable. In those circumstances there is a requirement for notice, subject to a discretion to waive notice in appropriate circumstances. The material sought to be relied upon from each of the absent deponents was not of a hearsay nature and accordingly s 67 notices had no application to the evidence.
82. Ultimately the issue of the failure to call the witnesses relied upon in this case becomes only relevant in respect of two of them:
· Tsung Lin and Lin Chia Ching who were both valuers. Agreement was reached in respect of the properties valued by them.
· Zhong H Chen who was a translator and was resident in New South Wales. Apparently none of Mr Zhong's evidence was controversial.
· The deponents Chang Tzu Fan, Chang Hui Ya, and Chang Chin-Tsai were all relatives of the husband, and deposed to matters concerning commercial dealings of the husband.
Another sister of the husband, Chang Chou Ya, gave evidence viva voce and was cross-examined.
83. It is not apparent from any of his Honour's findings that he in any way relied upon the other deponents. As his Honour said:
"The only material I feel able to safely act upon is that upon which there appears to be substantial agreement or admissions are against interest. I was not comfortable with the quality of supporting evidence. The husband relied on affidavit and other material, particularly on affidavits from Taiwan, which were not tested. His sister, who gave evidence on his behalf, was clearly in his camp."
84. In these circumstances it cannot properly be said that his Honour failed to make a ruling at the start of the case or at all as to the affidavit material which was admissible insofar as such ruling might apply to the deponents whose material was left in evidence but not subsequently acted upon. In our view it is clear that his Honour determined, in accordance with the provisions of Order 16 rule 10, to allow the affidavits to remain in, but to give them little, if any, weight. It is true that he had invited the wife to make further submissions about the matter in the course of giving evidence, especially with regard to the availability or otherwise of the deponents to attend and that that matter appears to have been subsequently overlooked. However, given that his Honour ultimately placed no reliance on the material contained in the affidavits, this oversight is not a matter of which the wife can now be heard to complain.
85. Whilst Ground 5(a) contains an assertion that his Honour erred in allowing counsel for the husband to lead evidence in examination in chief, this was not a matter that was pressed by counsel in the appeal before us and we propose to make no further comment about it, other than to say that the trial Judge had a wide discretion in respect to the manner in which evidence is to be presented at trial. Under the provisions of Order 30 Rules 2 and 2AB the Court has an unfettered discretion to allow oral evidence in chief, either in total or as a supplement to affidavit evidence. We see nothing in this case that would call for us to outline in what circumstances such a discretion might be circumscribed.
Procedural fairness – The migration document
86. In her affidavit of evidence in chief (Appeal Book 100, para 90) the wife asserted that the husband's assets were more than $4.55m when he applied for a business migration visa in 1992:
"He made a report to Australian Consulate General, Hong Kong Migration Office, saying that his assets were at least A$4.55million. (see the document from Immigration by Subpoena)…"
87. The wife then set out a list of what she said the assets were and gave the source as "Immigration".
88. She was cross-examined about her assertions in the affidavit concerning the husband's assets. The following exchange took place:
"MR LEVETT: No if it is not on your affidavit madam I do not want to hear about it. Now could you turn to page 27 please? "As I know the husband has a lot of real estates part of them are:" and then there is a whole list. Do you see those?
THE INTERPRETER: Yes.MR LEVETT: One, number 124 Chen Ti Road, purchased 1970, do you see that?
MS SU: Yes.
MR LEVETT: That was never owned by your husband was it, it belonged to his mother?
THE INTERPRETER: I am not sure about that but he did declare it in his own affidavit. Sorry in his information provided to the Department of Immigration and in the subpoena.
MR LEVETT: Have you got a copy of that?
THE INTERPRETER: No because the downstairs clerk said you have to get special permission to get that copy so I didn't do it.
MR LEVETT: You see that was sold by his mother to another party in either 1980 or 1981 was it not?
THE INTERPRETER: I am not sure of that."
89. It was submitted that having been alerted to the possible existence of a document in which the husband had made admissions against interest to an Australian government official, and having been alerted to the fact that the document was in the possession of the Court, the trial Judge ought to have explained to the appellant in accordance with Guideline 2 of Johnson v Johnson (supra) the procedures appropriate to the presentation of the material.
90. We were informed by Counsel that the practice of the registry is not to allow parties to make copies of documents which have been placed in the possession of the Court in answer to a subpoena, without first obtaining the permission of the person producing the document. (This was not a practice familiar to any of us but it is unnecessary for us to comment on it). We assume that is what the witness was making reference to in her answer to counsel's question as to whether she had a copy of the document.
91. In our view, the nature of the document was likely to be of such significance in this case that the trial Judge ought to have made further enquiries of the wife as to whether or not she wished to pursue its admission into evidence, notwithstanding that she had not been provided with a copy of it. The trial Judge confined his findings to matters which he said were based on admissions against interest or were the subject matter of agreement.
92. Here his Honour was being alerted to the existence, within the confines of the Court building and in the possession of the Court, of a document which may well have contained a large number of admissions against interest on behalf of the husband. The wife had raised some procedural difficulty about presenting it. It was a document of such potential importance that any such procedural difficulty called for clarification. At the very least his Honour ought have asked the wife whether she wanted the original document in Court and whether she wanted to subpoena it. In our view, the failure of the trial Judge to make further enquiries of the witness as were indicated casts a serious shadow over the result reached in the proceedings in this case.
93. This oversight came in a case where the trial Judge had otherwise been extremely assiduous in following the guidelines set out in Johnson's case (supra). There are large tracts of transcript showing how patiently his Honour dealt with the wife and her language difficulties. The wife appears from a reading of the transcript to accept and understand the explanations offered. Yet a document which may have held the key to much of the case being presented was allowed to slip into the shadows by an understandable lack of appreciation of its potential significance at the time it was mentioned. This event is demonstrative of the high degree of vigilance that must be shown by trial judges in dealing with unrepresented litigants in complex and complicated proceedings.
94. Does this oversight amount to an appellable error sufficient to require a retrial? No application has been made to this Court to admit further evidence on appeal. We do not know the contents of the immigration document other than the description attributed to it by the wife. Absent an application to admit the document into evidence this Court cannot be satisfied that its contents were such that the result of the trial would have been different had it been before the trial Judge (see CDJ v VAJ (supra)). Accordingly any reliance on this oversight cannot lead to our interfering with the judgment.
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Conclusion
122. Given his Honour’s failure to:
(a) (a) give adequate reasons as to why he was rejecting evidence about the wife’s debts, and accepting evidence about the husband’s disposal of the proceeds of sale of assets (in circumstances where his Honour had earlier said that he would not accept evidence other than agreed evidence or evidence by admission contrary to interest), and
(b) make adequate findings upon which a s 75(2) adjustment could be made, we are of the view that the matter has to be remitted for re-hearing. Unfortunately, given the two matters just mentioned, we have concluded that it would be impossible for us to attempt to re-exercise the discretion ourselves. There are other aspects of the judgment which would merit interference by this Court namely there is no finding or reason provided at all in respect of the issue of spousal maintenance, and the adjustment in respect of s 75(2) factors is inadequate …
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Orders
125. The orders of the Court will be:
1.That the appeal be allowed.
2.That the orders made by the Honourable Justice Rowlands on 30 October 1998 be set aside.
3.That the application of the wife contained in her amended application filed 6 July 1998 and the response of the husband filed 15 June 1998 be remitted for rehearing by a judge at the Sydney Registry other than the Honourable Justice Rowlands.
4.That the Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act (1981), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.
5.That the Court grants to the respondent husband a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act (1981), being a certificate that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to the respondent husband in respect of the costs incurred by him in relation to the appeal.
6.That the court grants to the respondent husband a further certificate pursuant to s 8 of the Federal Proceedings (Costs) Act (1981) being a certificate that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent husband in relation to the new trial granted by these orders.
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