Wei & Xia (No 4)
[2022] FedCFamC1F 204
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wei & Xia (No 4) [2022] FedCFamC1F 204
File number(s): SYC 196 of 2017 Judgment of: HARPER J Date of judgment: 31 March 2022 Catchwords: FAMILY LAW – EVIDENCE – Where senior counsel seeks to cross-examine on three business cards – Where objection taken by reason of non-disclosure prior to hearing – Where business cards had not been disclosed – Where witness is in the middle of cross-examination and cannot give instructions – Objection overruled. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04
Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 31 March 2022 Place: Sydney Counsel for the Applicant: Mr Cummings SC and Ms Lioumis Solicitor for the Applicant: Broaden Legal The First Respondent: Litigant in Person Counsel for the Second and Third Respondents: Mr Richardson SC and Mr Reynolds Solicitor for the Second and Third Respondents: MLH Lawyers ORDERS
SYC 196 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEI
Applicant
AND: MR XIA
First Respondent
MR B XIA
Second Respondent
MS SIANG
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
31 MARCH 2022
THE COURT ORDERS THAT:
1.The objection made by senior counsel for the Second and Third Respondents to the use of three business cards during cross-examination by senior counsel for the Applicant Wife be overruled.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wei & Xia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These proceedings have a long history in the Court. It is unnecessary to rehearse that to any extent for the purpose of this ex tempore judgment.
During the course of the cross-examination of the Second Respondent, who is the father of the First Respondent Husband, senior counsel for the Applicant Wife sought to put to the witness a business card. Objection was taken by senior counsel for the Second and Third Respondents on the basis that the relevant business card had not been disclosed in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). During the course of argument, it transpired that there were, in addition, two other business cards which senior counsel for the wife proposed to put to the Second Respondent in cross-examination. The additional business cards had also not been disclosed in accordance with the Rules.
The purpose of putting these business cards to the witness was outlined in submissions by senior counsel for the wife in the absence of the witness. In particular, senior counsel for the wife seeks to cross-examine the witness in relation to various assertions he made in an affidavit which was affirmed on 7 February 2022, at paragraphs 18–21, which make various factual contentions about business cards.
I note here that the affidavit, affirmed on 7 February 2022, was filed and served some six months beyond the dates prescribed by directions made by the Court.
The obligation of disclosure under the Rules is to make disclosure in a timely manner.
I was told in submissions that at least one of the business cards came into the possession of the wife’s representatives only a few days prior to the commencement of the trial on 28 March 2022.
Senior counsel for the Second and Third Respondents objected to the use of the cards in cross-examination, not only on the basis of non-disclosure, but also because, by reason of the non-disclosure, he had been unable to obtain instructions from his clients about them.
It is, of course, necessary for me to balance the competing contentions about the use of these three business cards in cross-examination against broader case management considerations, which I must take account of by reason of s 67 of the Federal Circuit and Family Court of Australia Act 2021, and r 1.04 of the Rules.
In the circumstances, I have decided that senior counsel for the wife should be permitted to utilise the business cards in cross-examination without, for example, senior counsel for the Second and Third Respondents having dispensation to seek instructions about them during the course of cross-examination. This can be done prior to any re-examination if application is made.
In my view, it is unnecessary, and would be an undue waste of time, to engage in a process such as a voir dire to establish the specific prominence of these three business cards and the circumstances in which they may have come into the possession of the legal representatives for the wife, bearing in mind that this case is already part heard from October 2020, was adjourned by reason of the COVID-19 pandemic in June 2021, and has already proceeded for three and a half of the 10 allocated days for resumed hearing.
Accordingly, the objection by senior counsel for the Second and Third Respondents is overruled.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 31 March 2022. Associate:
Dated: 28 April 2022
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