Ting and Fingal (No 4)

[2013] FamCA 1106

FAMILY COURT OF AUSTRALIA

TING & FINGAL (NO 4) [2013] FamCA 1106

FAMILY LAW – Subpoenas

APPLICANT: Ms Ting

RESPONDENT: Mr Fingal

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 130 of 2013

DATE DELIVERED: 13 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 13 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Orders

1. The application made this day by the applicant to file additional affidavit material is dismissed. 

2. The applicant seeks leave to issue a subpoena to C Hospital for the purposes of production of medical records.  No objection is taken to the filing of that subpoena.  Accordingly I grant leave for that subpoena to be issued. 

3. I will grant leave for the issue of subpoenas directed to Dr D, Ms E, and Optus.

4. I will make a further order that the matter be listed for hearing before me as a part-heard matter resuming on 24 February 2014, noted that it will require a further five days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Ting & Fingal (No. 4)> 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 130 of 2013

Ms Ting

Applicant

And

Mr Fingal

Respondent

REASONS FOR JUDGMENT

1. I have heard an application today on behalf of the applicant that his client have leave to file and rely upon at hearing three affidavits;  one from Mr F, one from Mr G, and another from a witness Mr H.  That affidavit has not yet been sworn, and is not available for consideration in the context of this application.

2. This application comes before the court after four days of evidence in circumstances where each of the parties has filed numerous affidavits supporting their respective positions with respect to the threshold issue as to whether or not the parties were in a de facto relationship.  The issues have been known as between these parties since at least January of 2013 when the applicant filed her initiating application.  The allegation made by the applicant is that these parties were in a de facto relationship for a period of approximately eight years between 2004 and 2012.

3. The evidence sought to be adduced from the proposed witnesses relates to matters which have occurred during that period of time.  It is evidence that was known to the applicant well prior to the commencement of this hearing.  Counsel for the applicant urges that the evidence sought to be adduced is relevant, and that it relates to observations by the witnesses of facts in issue.  He submits that there is little prejudice to the respondent if leave is granted for the filing of material at this stage in the proceedings.

4. Counsel for the respondent strenuously opposes the application for leave.  He relies upon concerns that the evidence has been produced at a time when the applicant is under cross-examination.  I have provided the practitioners for both parties the opportunity to have a discussion as to the circumstances in which the evidence was obtained as a result of the concerns raised by the respondent as to whether or not the applicant’s instructing solicitor has in fact had conversations with his client in relation to the proposed affidavit material.  I note that following those discussions, counsel for the respondent has accepted the explanations provided by the applicant’s instructing solicitors and has confirmed that at all times Mr Abraham’s has conducted himself in an ethical and proper manner, and there is an acceptance on behalf of the respondent that Mr Abrahams had not spoken to his clients with respect to these matters. 

5. Nonetheless, the respondent maintains his objection to the admission of further evidence in circumstances where from his client’s perspective, the affidavits are brought merely to bolster the case of the applicant, and that they relate to issues of credit.  Further, he points to the fact that there has been no explanation provided as to the late production of this affidavit material.  Counsel for the applicant has indicated that the reason for the late production of the material in part arises due to the late filing of material by the respondent in the week preceding the commencement of this matter.

6. He points to the fact that the issues raised in the proposed affidavit material go to matters that are already in evidence form the applicant, and possibly from witnesses supporting her case.  In particular with respect to the affidavit of Mr F, he points to the fact that the respondent’s attendances at the I Street premises have been raised in affidavits already filed by the applicant.  Similarly, the alleged dispute which occurred between the applicant and the respondent’s wife has been dealt with in other affidavits filed by the applicant in support of her case.  He also points to the fact that the issue of the applicant being invited to have a share in the respondent’s business is a matter dealt with in other affidavit material filed by the applicant in support of her case. 

7. Ultimately, it is a matter for the trial judge to consider the appropriateness of this material, having regard to the rules of the court and the main purposes of the rules.  The length of the trial is a matter of great concern to me.  It is my task to endeavour to control the way in which this case is conducted, and the duration of the case.  Having regard to the volume of material already before the court which traverses these matters, and having regard to the fact that the applicant is in the witness box under cross-examination, and indeed is I think up to day two or three of cross-examination, I take the view that it is not appropriate for leave to be granted for the filing of any further affidavit material in this matter.

I certify that the preceding five (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 September 2013.

Associate: 

Date: