Trevi & Trevi (No 3)

[2015] FamCA 1227

FAMILY COURT OF AUSTRALIA

TREVI & TREVI (NO. 3) [2015] FamCA 1227

FAMILY LAW – EVIDENCE – Admissibility of evidence – ex tempore ruling.

Evidence Act 1995 (Cth), ss 55 and 135
Family Law Act 1975 (Cth), s 79
Family Law Rules 2004 (Cth), rr 11.01, 15.42, 15.51 and 15.52

Dickons & Dickons [2012] FamCAFC 154
Ferraro & Ferraro (1993) FLC 92-335
In the Marriage of Shewring (1987) 12 Fam LR139
Mallet v Mallet (1984) 156 CLR 605

APPLICANT: Ms Trevi

RESPONDENT: Mr Trevi

FILE NUMBER: MLC 8475 of 2014

DATE DELIVERED: 2 December 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 2 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr B Geddes Q.C. and Mr Nehmy

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE RESPONDENT: Mr T North S.C. and Ms M. Smallwood

SOLICITOR FOR THE RESPONDENT: King & Wood Mallesons

IT IS NOTED that publication of this ruling by this Court under the pseudonym Trevi & Trevi 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 8475 of 2014

Ms Trevi

Applicant

And

Mr Trevi

Respondent

EX TEMPORE RULING

1. This is a ruling in relation to the admissibility of the affidavit of Ms W which the husband proposes to rely upon in the trial and it is a ruling in relation to the oral application brought by the husband to seek leave to adduce evidence of a report of Ms W as an expert witness. 

2. The husband filed a summary of issues document on 31 August 2015 for the first hearing date of this matter where procedural orders were made and at paragraph 11 of that summary of issues document it states the following:

   The husband takes issues with the level and extent to which the wife contributed as a homemaker throughout the course of their relationship.  She provided little or no encouragement or support to him or his professional life and did not contribute in the manner and to the extent which might usually be anticipated of a partner to a marriage, as a homemaker, where the partner took no responsibility for any other sphere of activity.  The wife made no financial contribution except for a modest bequest.

3. Paragraph 10 also states:

   Both before and after separation, the husband made substantial contributions as a homemaker and parent.  On a daily basis, he attended to the needs of the children.

4. That summary was filed in relation to the first hearing date and it does not mention obesity.

5. At the first-day hearing before me on 31 August 2015, the husband’s then counsel, Mr Hutchins, foreshadowed a serious issue about contributions which the husband proposed to raise in the trial.  He referred to an affidavit of the husband filed on 17 March where the husband deposes that the wife’s care of the children was inappropriate.  Counsel for the husband indicated that the husband will seek to produce “medical evidence” about the wife’s inadequate contribution, suggesting that one explanation for the BMI of one of the children in 2014 was “poor diet”.  He referred to a “medical nutritionist”.

6. Counsel for the wife did not – the words were “didn’t imagine that this would be seriously put” and said, “We have to see what the argument is.”  This was in the context of ascertaining the duration of a prospective trial and to give trial directions about the filing of material and five witnesses were referred to and at line 25 of the transcript I am told that there is a reference to experts.  The trial was fixed for 30 November 2015 and there was a suggestion that it may need to be moved to next year if there was going to be evidence in response filed by the wife referring to any possibility of expert evidence, although there was no application made in relation to that.

7. At a subsequent mention on 17 November 2015 there was no mention made about any expert evidence at that hearing before me, but another issue was raised, about the late valuation of properties purchased post-separation, and that was ultimately dealt with by way of consent.

8. The affidavit of Ms W was filed by the husband on 27 October 2015 as “an affidavit of a single expert witness”.  That affidavit refers to Ms W as an accredited practising dietitian since 2004 and deposes to photographic evidence of obesity in K and J in 2013.  She deposes that on the basis of four photographs provided by the husband.  She deposes to significant obesity in K, aged 19, and J, at age 14, in 2013.  She deposes to that on the basis of “information gained from shopping receipts” and “reported intake of regular takeaway foods”.   She deposes to an opinion that:

   This in combination with a low intake of fruit and vegetables provide a probable reason for the boys becoming obese.

9. Ms W also refers to a lack of physical activity.  She goes on to depose, on the basis of the information provided by the husband:

   The changes in the boys’ diets and lifestyles from October 2014 also provides evidence that weight loss is achievable when provided a more appropriate diet, including less discretionary foods, and increased physical activity.

10. She refers to limited evidence of purchases of fruit and vegetables on the basis of the supermarket receipts provided by the husband and purportedly the wife’s supermarket receipts.  She relies on ‘Nando’ receipts.

11. Ms W refers to J’s weight in July 2015 as within the healthy weight range for his age and sex, but then notes that in October 2015 he had regained 16.4 kilograms in three months and provides an explanation for this, but then states: “This highlights the need for an ongoing appropriate dietary intake and physical activity levels in order to remain within the healthy weight range.”  Her conclusion is:

    In my opinion, both [K] and [J] became obese prior to October 2014 as a direct result of their nutritional intake and sedentary lifestyles.  The weight gain occurred in response to a dietary intake of high-energy foods, large portion sizes, and inadequate physical activity.  Following the intervention of their father in October 2014, with a healthier diet and increased activity, both boys lost large amounts of weight.  Such a significant weight loss provides clear evidence for the aetiology of the boys’ obesity.

12. On 26 November 2015 the husband filed an Outline of Case which was subsequently amended and filed in the afternoon of 30 November 2015.  In that Case Outline the husband argues, and counsel for the husband argued before me in relation to paragraphs 20 to 45 of that Amended Case Outline, about the assessment of contributions.  There are many quotations provided in that Case Outline and I will not read through the whole of paragraphs 20 to 45, but they are all relevant in terms of the husband’s argument about how the assessment of contributions should be made and refer to a large number of cases.

13. On 30 November 2015, the first day of the trial, counsel for the husband conceded that the two affidavits purporting to be affidavits of single expert witnesses were, in fact, a mistake, but were expert witnesses relied upon by the husband.  The wife objected to both of these expert witnesses’ affidavits in her Case Outline. (I am really only dealing with the expert witness Ms W now, but the outline refers to both expert witnesses). The objections raised in that Case Outline, which was filed on 26 November 2015, were on the basis:

    (a) that the affidavits were filed contrary to Part 15.5 of the Family Law Rules 2004, in particular, Divisions 15.5.3, 15.5.4 and 15.5.5;

    (b) the affidavits purport to be ‘affidavit of a single expert witness’, which they are not; and

    (c) the affidavits should be excluded pursuant to the discretion afforded by s 135 of the Evidence Act 1995 (Cth).

14. Counsel for the husband conceded that no procedural orders had been made granting permission to tender a report or adduce evidence at the trial for an expert witness as required under Rule 15.51 of the Family Law Rules 2004 (Cth) (“the Rules”). Under Rule 15.52 of the Rules, a party may seek permission to tender a report or adduce evidence from an expert witness by filing an Application in a Case together with an affidavit stating the facts relied on in support. Rule 15.52(2) sets out the requirements for that affidavit.

15. Counsel for the husband submitted that the procedural first-day hearing was, in effect, an oral application for permission to tender a report or adduce evidence in the trial from an expert witness.  He relied upon the procedural orders made for the filing of the affidavit material and the references to the husband “seeking to produce medical evidence” and “medical nutritionists”.  He relied upon indications given by counsel about the estimated duration of the trial.

16. I do not accept that any oral application to adduce evidence or tender a report from an expert witness was made and there were no orders made granting leave to file that type of material.  There were procedural orders made in relation to the filing of affidavits.

17. Having regard to the discussions on 31 August 2015 at that hearing and a subsequent mention on 17 November where there were no issues raised on behalf of the wife as to the filing of the two “affidavits of single expert witness”, I invited counsel for the husband to make an oral application under Rule 11.01.  Counsel for the husband submitted there was no prejudice suffered by the wife because the affidavits had been foreshadowed and filed well before trial and no objection was taken at the mention before the trial.

18. Counsel for the husband addressed the criticisms raised in the objections by the wife as to the lack of independence of the witness Ms W and referred to the tendering of Exhibit 4, which was a bundle of emails between the instructing solicitor for the husband and the witness Ms W which, on the face of it, appear to support the contention of counsel for the wife that the expert witness required clarification about what ‘code’ she was relying upon and sought comments from the instructing solicitor for the husband about any  ‘modifications’ that she needed to make to her report after she sent it to him on 25 October 2015 and then later the same day refers to “my changes as discussed” when attaching the Court report in an email to the instructing solicitor for the husband.

19. Counsel for the husband indicated that he would need to make inquiries about the emails between the expert witness and his instructing solicitor, but submitted that procedural fairness would require that any findings about the independence of the witness should not be made without a voir dire being conducted to give her an opportunity to respond. Counsel for the husband addressed the requirements set out under Rule 15.52(2) in support of his oral application. He referred to the purposes of Part 15.5 under Rule 15.42 and emphasised the interests of justice. He submitted that from the outset counsel for the wife’s response to engaging a single expert was that it was not appropriate and ‘laughable’.

20. Regarding the issue about which the expert witness’s evidence is to be given and the reason the expert evidence is necessary in relation to that issue, he relied upon the amended case outline filed by the husband late on the first day of the trial (30 November 2015) at paragraphs 20 to 29.  He eschewed the written supplementary argument on behalf of the wife which characterised the husband’s case as an invitation to assess the wife’s contributions as parent and homemaker in light of the expectations formed by him prior to their marriage as a ‘traditional’ marriage.  He denied that the argument for the husband was that the wife did not live up to his expectations.  He denied that the husband’s case was seeking an assessment of contributions based on the expectations of the husband, but instead of the ‘shared goals and aspirations’ of both of them referring to paragraph 2.5 of the husband’s trial affidavit.  He adopted the approach of Nygh J in In theMarriage of Shewring (1987) 12 FamLR 139 (“Shewring”) that was cited in the material provided to me submitting that there is no objective scale but the approach should be to consider the contributions of each of the parties as can reasonably be expected as to the nature of capacity of the parties and expectations of the parties. 

21. He emphasised that each process of evaluation should depend entirely on the facts of the case by reference to the particular marriage and facts and, relying on Dickons & Dickons [2012] FamCAFC 154 (“Dickons”), he referred to the nature, form and extent of the wife’s contributions, which he submitted as homemaker should be assessed by reference to the evidence of the expert dietician that, notwithstanding that the wife was well-educated, well-resourced and the husband had raised concerns that the boys were developing eating habits in the house run by her with poor health outcomes, that the children were capable of achieving better outcomes on leaving the family home to live with the husband.  Counsel for the husband argued that the effect of the contributions in this marriage was obesity in the children, which was a matter relevant to a person who bore primary responsibility for “putting food in front of them”. 

22. He argued this is relevant to the respective value of the contributions.  He conceded it was assumed that the matters asked of the expert witness needed to be established on other evidence.

23. I do not disagree with the passages in the cases referred to by counsel for the husband and most of those cases would not necessarily be controversial. I accept that they are appropriate in terms of the approach to be adopted in assessing contributions of the parties for the purposes of any adjustment to property under section 79 of the Family Law Act 1975 (Cth) (“the Act”). However, I do not accept that any finding about whether the children were obese or whether poor diet contributed to obesity is relevant for assessing the nature, form and extent of the contributions of each of the parties. It is, without doubt, important to assess contributions made by the parties in the context of the facts particular to this case.

24. In Dickons, the Full Court encouraged an assessment of the ‘nature and form of the particular marriage partnership manifested by particular circumstances of the particular marriage’.  The contribution of homemaker to the welfare of the family cannot be examined on the basis of undertaking a detailed analysis of the quality of performance of the roles having regard to the warnings of the Full Court in Ferraro& Ferraro (1993) FLC 92-335 (“Ferraro”) that no detailed assessment is either called for or appropriate. (I am referring to the quotations from Ferraro that were provided in the written submissions made on behalf of the wife).

25. A subjective value judgment of failed expectations in a spouse is not appropriate in evaluating contributions.  The argument for the husband is an artifice for that evaluation. 

26. The evidence of the proposed expert dietician is not capable of rationally affecting, (directly or indirectly), the assessment of the probability of the existence of a fact in issue in the proceeding under section 55 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Even if inferences could be drawn from that evidence that the children were obese as a result of poor diet, such evidence is not probative of the fact in issue in the proceeding which is the extent to which the husband and wife have contributed to the property of the marriage having regard to their respective roles.

27. Notwithstanding that the role of the wife in this marriage was that of a homemaker, there is no requirement of that role that the homemaker is responsible for the health outcomes for teenage children, both parents bear responsibility for the welfare of their children and any evidence about the educational level, psychological health or development of the children is not relevant for the purpose of the exercise to be undertaken here. 

28. I turn to the written submissions that were made on behalf of the wife.  I accept the written submissions of the wife and, in particular, at paragraph 5 with some revision and what I say about that I accept what the submissions say at paragraph 5 with some slight change.  The gravamen of the husband’s argument is that the wife did not live up to their shared expectations and her contributions as homemaker and parent should be assessed and evaluated by reference to these expectations.  The genesis of the husband’s argument derives from the comments of Wilson J in Mallet v Mallet (1984) 156 CLR 605 (“Mallet”) at [636] where his Honour said in regard to the assessment of homemaker and parent contributions:

    The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets.  However, equality will be the measure, other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal.  The quality of the contribution made by a wife as homemaker or parent may vary enormously from the inadequate to the adequate to the exceptionally good.  She may be an admirable housewife in every way or she may fulfil little more than the minimum requirements.  Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party.  It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each.  That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree.[1]

    [1]Mallet v Mallet (1984) 156 CLR 605 at [636]

29. However, in Mallet, the other members of the High Court expressed themselves in different terms in discussing whether the homemaker contribution could be equated with the efforts of the other spouse as the breadwinner during the course of the marriage.

30. I was referred to Nygh J in the decision of Shewring (referred to at paragraph 8 of the written submissions on behalf of the wife) where he was critical of Wilson J’s approach in Mallet and stated as follows:

    I am aware very much of the remarks made by Wilson J in Mallet v Mallet… and, in fact, on the basis of that remark it has been suggested from time to time that the court must assess in some way or another the quality of contribution made by a party, for instance as breadwinner on the one hand and as homemaker on the other, on a scale which presumably ranks from the perfect to a total failure.  I myself cannot accept that anything like that was ever in Sir Ronald’s mind.  It is not, I think, the function of this court.  It has never done so and I trust will never do so in the future, to assess the quality of each party on a scoring board which, so far as breadwinners are concerned, would give top marks to the Holmes à Court’s of this world and bottom mark to the unemployed roustabout and, I suppose, in the homemaker and parenting stakes will give top marks to those ladies who in the age of the great dictators would have received the glorious motherhood medal, and bottom marks to those ladies who, it is alleged spend most of their time in the tennis club and the coffee klatsch and waste their precious time in idle pleasure.  I take the view based upon the traditional marriage vows that the parties take one another for better and for worse.[2]

    [2] In theMarriage of Shewring (1987) 12 FamLR 139 at [141]

31. The husband’s Case Outline adds emphasis to the following extract from the judgment of Nygh J in Shewring where his Honour stated:

    The assessment of the quality of the contributions should be based on the principles that each party should make such contribution as can be reasonably expected, having regard to the nature of the parties’ capacity, the ability of each of the parties and the expectations of the spouses. [3]

    [3] In theMarriage of Shewring (1987) 12 FamLR 139 at [141]

1. To the extent that the words of Nygh J can be relied upon in support of an argument that contributions ought to be evaluated with reference to the expectation of spouses, counsel for the wife referred me to the Full Court in Ferraro – I am referring to paragraph 10 of the written submissions – where the Full Court criticised any suggestion that the Court is required to undertake a detailed analysis of the quality of performance of the roles of the parties and, in fact, expressly warned against doing so, noting that assessment of the quality of homemaker contributions is vulnerable to subjective value judgments. 

2. The wife’s written submission refers to a passage from Ferraro which refers to the words of Nygh J again and states:

   In that passage Nygh, J makes, in our view, a valid criticism of any suggestion that in each case there must be a detailed analysis of the quality of performance of the roles of the parties.  That passage suggests that for cases within what might be regarded as the norm or normal range of such roles, no detailed assessment is either called for or appropriate and that, we consider, accords with the daily practice in the Court.

   The task of evaluating and comparing the parties’ respective contributions where one party has exclusively been the breadwinner and the other exclusively the homemaker, is a most difficult one to perform because the evaluation and comparison cannot be conducted on a “level playing field”.  Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family.  Secondly, whilst a breadwinner contribution can be objectively assessed by reference to such things as that party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subjective value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of assets acquired.  This leads to a tendency to undervalue the homemaker role.[4]

   [4] Ferraro & Ferraro (1993) FLC 92-335

3. In addition the lack of relevance pursuant to section 55 of the Evidence Act, even if I am incorrect in regard to the relevance issue, I am not satisfied that as a matter of fairness this evidence should be admitted, having regard to the letter of assumptions upon which the opinion is based. The expert has never seen the children, other than being provided with four photographs, and has no information other than the instructions of the husband. The opinion is unfairly prejudicial to the wife, confusing because it refers to J actually gaining weight after losing weight and would result in an undue waste of time. The low probative value of the evidence is a further reason for refusing to admit the evidence. Little, if any, weight could be placed on the nature of that opinion evidence.

4. Counsel for the husband submitted that a voir dire would be necessary to accord natural justice to the dietician, Ms W, were I to make any findings that she is not an independent expert witness. I find it unnecessary to conduct a voir dire on this issue as I have made my determination on the basis of relevance and the discretion to exclude evidence pursuant to section 135 of the Evidence Act. I make no findings regarding the independence of this witness.

5. Accordingly I rule that the affidavit of Ms W is inadmissible in the trial because it is not relevant under section 55 of the Evidence Act and pursuant to the discretion to exclude evidence under section 135 of the Evidence Act, the evidence is inadmissible because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the wife, having regard to the letter of instruction, and would result in an undue waste of time.

6. The ambiguity in the evidence about J also justifies its discretionary exclusion under section 135 of the Evidence Act.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 2 December 2015.

Associate: 

Date:  3 May 2016