Trent and Rowley

[2013] FamCA 706

FAMILY COURT OF AUSTRALIA

TRENT & ROWLEY [2013] FamCA 706

FAMILY LAW – Property trial rulings

Family Law Act 1975 (Cth)

APPLICANT: Mr Trent

RESPONDENT: Ms Rowley

FILE NUMBER: MLC 10211 of 2011

DATE DELIVERED: 27 June 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hutchings

SOLICITOR FOR THE APPLICANT: Wilsons Lawyers

COUNSEL FOR THE RESPONDENT: Mr Salamanca

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Trent& Rowley 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 10211 of 2011

Mr Trent

Applicant

And

Ms Rowley

Respondent

RULINGS

1. In this matter, I am required to make three rulings.  The first relates to whether or not the applicant can rely on some affidavits that are not yet filed but that he now wants to file.  The second relates to an affidavit of an accountant who prepares the taxation returns of the respondent.  The third issue relates to the objections to evidence by both parties in relation to the evidence in chief of the other. 

2. In respect of the first issue of the affidavits, I do not propose to allow them to be filed and relied upon.  I made very clear orders setting out the timetable much earlier this year, and indeed, subsequent to that there was a hearing relating to compliance.  The Court’s resources are extremely limited, and I made that clear whenever I set the case down.  It is not just a matter of justice to the parties;  it is a matter of the resources of the Court, which are obviously a public resource.  There is a potential in this case for the respondent to be prejudiced by virtue of the fact that she has to first inquire as to whether or not the evidence is to be challenged, and secondly, it may very well require the issue of subpoena and/or further affidavits.  In addition to that, there is the prospect that the adjournment of these proceedings would delay the matter substantially having regard to the resources of the Court.  Counsel for the applicant says that these affidavits are simply corroborative and that they take the matters no further.  If that is the case, then there is no prejudice to the applicant.  In my view, this is one of those cases where the Court has to draw a line and simply deny a party who prepares things at the last minute, potentially causing a case to go off the rails.

3. The second issue relates to the affidavit of the respondent’s accountant.  It is objected to on the basis that it is irrelevant, unclear and unsubstantiated hearsay.  Mr B is an accountant who has been preparing the tax returns for the respondent.  His affidavit was filed on 14 June.  At that stage, according to counsel for the respondent, his client did not know what it was that they were to meet.  This affidavit was filed to cover a situation where loans were said to have been made by the respondent’s business and not repaid.  Mr B’s evidence is not being led as an expert, but rather as to a fact.  It seems to me that that affidavit is easily cross-examined upon and should be allowed into evidence.

4. The third issue relates to the objections to evidence.  I do not propose to go through these in any detail, but I am asked to rule on specific matters.  In respect of the applicant’s objections to the evidence of the respondent, I disagree that paragraphs 80 to 81 should be not admitted, unless the facts asserted in those two paragraphs are disputed, and it is hard to see that they are.  They are not going to the truth of the representation but to, indeed, the fact that the statements were made.  I do not therefore propose to strike those paragraphs out.  I otherwise agree with counsel for the applicant in respect of paragraph 83, 85, 93, 95, on the basis that the assertions there are indeed as set out in the written objection.

5. In respect of paragraph 145, I disagree with the assertion that it is an unsubstantiated and unqualified assertion.  In my view, the respondent is entitled to express a view.  Whether it carries any weight is a matter for me to determine.  In respect of the objections raised by the respondent to the applicant’s affidavit, I agree in respect of paragraph 50, 100, and in respect of paragraph 100, although it is objected to on the grounds that there is no foundation provided for such unsubstantiated assertion, I would grant an objection on the basis that it is simply comment, opinion, and seems to me to be irrelevant to any issue in dispute.  I also agree with the objections to paragraph 111.1, 111.2 and 111.4.  All of those pieces of evidence will be struck out.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 June 2013.

Associate: 

Date:  16 July 2013