WILLANS & ENMORE
[2021] FamCA 73
FAMILY COURT OF AUSTRALIA
| WILLANS & ENMORE | [2021] FamCA 73 |
| FAMILY LAW – RULING ON EVIDENCE – principle trial affidavits of the parties – major portions of each sought to be ruled inadmissible. |
| Family Law Act 1975 (Cth) |
| Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 In the Marriage of Kennon (1997) 22 Fam LR 1 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Willans |
| RESPONDENT: | Mr Enmore |
| FILE NUMBER: | SYC | 4725 | of | 2017 |
| DATE DELIVERED: | 16 February 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 15 & 16 February 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms S. Christie SC |
| SOLICITOR FOR THE APPLICANT: | Greg Alfonzetti Solicitor |
| COUNSEL FOR THE RESPONDENT: | The Hon. Ian Coleman SC |
| SOLICITOR FOR THE RESPONDENT: | Andrew Cohen Solicitor |
Orders
Parts of the affidavit of Ms Willans made 30 November 2020, the affidavit of Mr Enmore made 5 December 2020 and the affidavit of Mr Enmore made 9 February 2021 are ruled inadmissible as provided hereunder.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Willans & Enmore has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: SYC 4725 of 2017
| Ms Willans |
Applicant
And
| Mr Enmore |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Shortly after the conclusion of very helpful openings in this case, Ms Christie of Senior Counsel for the applicant and Mr Coleman of Senior Counsel for the respondent pressed for evidentiary rulings in relation to the main affidavits of the parties. The objections taken by each were extensive. Counsel sought rulings on evidence before the case went further. These are my reasons for rulings on the extensive objections taken. Logically, it was necessary to first address the respondent’s challenges to the applicant’s evidence. Let me commence with the affidavit of the applicant made 30 November 2020.
Affidavit of Ms Willans made 30 November 2020
Mr Coleman of Senior Counsel addressed first, paragraph 19(a). There the applicant attributed the amount of $3,300 as being the respondent’s interests in J Pty Ltd as at the commencement of the applicant’s relationship with the respondent. On behalf of the respondent Mr Coleman SC contended that the applicant’s statement in paragraph 19(a) of her affidavit was a conclusion or an unqualified opinion. That much is true. No basis was offered for the value asserted. That paragraph is not admissible. I uphold the objection.
Next the respondent impugned paragraph 21 in which the applicant asserted that the respondent’s net position at the commencement of her relationship with him was $217,661. Mr Coleman contended that the figure of $217,661 was a conclusion or an unqualified opinion. The applicant gave as her occupation a finance professional. In arriving at her calculation of the respondent’s net position, the applicant calculated the items in paragraph 9 of her affidavit consisting of estimated values of interests in real estate as well as the estimated value of her interest in a self-managed superannuation fund less estimated liabilities.
Those were estimates. To the extent that the estimates related to real estate the applicant was not a valuer and I am unwilling to proceed on the basis that her qualifications as a finance professional permit her to give evidence of valuations. The High Court’s statement concerning a witness’s qualifications to give expert evidence as espoused in Dasreef Pty Ltd v Hawchar[1] do not allow such evidence. Paragraph 21 is not admissible. I uphold the objection to it.
[1] (2011) 243 CLR 588.
In paragraph 28(b) of her affidavit the applicant asserted that in 2006 the self-managed superannuation fund purchased B Street, Suburb C at a commercial value of $49,500.
The applicant’s focus in paragraph 28 of an affidavit was on attributing a value to unit 9 as at 2004, yet she stated that in 2006, two years later, the respondent sold the unit for a different amount. No documentation was provided to support asserted values on either date. In the form it currently appears I take the view that the contention of the unit’s commercial value in 2006 was not within the expertise of the applicant to give. I uphold the objection.
The respondent took objection to the use of the word “substantial” in paragraph 46 of the applicant’s affidavit. There the applicant asserted that the respondent made a “substantial profit” on the sale of D Street, E Town, Western Australia. She said the acquisition sum was $348,000 but she did not say what the sale price was nor did she say what the net sum was or why she described that as substantial profit. Without knowing the component elements, her assertion of “profit” and “substantial profit” was meaningless. The objection is upheld.
The respondent took issue with the reference in paragraph 47 to the phrase “all of the” in relation to work.
The applicant did not say what activities were captured by the overview she gave in that paragraph. Without any such breakdown, it was impossible to say whether her assertion that she did all of the work was exhaustive. In my view, the objection raised in relation to paragraph 47 has merit. I uphold it.
Objection was taken to paragraph 60 and its use of the adverb “solely” in relation to the search for a property to become the family home. Her use of the word “solely” may have meant she searched without the respondent or it could have meant that she did not use professional advisers. She did not say. Her use is ambiguous. I uphold the objection.
An unmeritorious objection was raised in respect of paragraph 61 in the use of the word “right” concerning the property purchased in Suburb G. As a matter of common human experience a purchaser of real estate purchases the property right for him or her. I find nothing conclusive about the use of the word “right”. This objection is overruled.
In the first sentence of paragraph 66 the applicant asserted that it took her nearly two years to find F Street, Suburb G. The respondent asserted that the first sentence was a conclusion and thus objectionable. I do not agree. The witness is well able from her own information to state in approximate terms how long it took to find F Street. This objection is overruled.
As to paragraph 74 the respondent submitted that it became apparent to the applicant that a significant capital gain in the value of the E Town property had emerged since hers and the respondent’s purchase of it. The respondent objected to that statement for being a conclusion. That much was true. No details were offered to underpin the assertion that a capital gain had emerged, let alone a significant one. The objection is upheld.
In two places in paragraph 76 the adjective “all” is used, first in the phrase “all necessary” and next in the phrase “all required”. The respondent contended that the use of the word “all” introduced unqualified opinion or a conclusion. The real complaint here seemed to me to be that both phrases imported the notion that the applicant performed each element of the stated activity without describing the acts she actually performed and without identifying why each such activity was a prerequisite to the event that followed. To my mind, each objection was well-founded. The words “all necessary” and “all required” require deletion.
In paragraph 80 the last sentence was said to be objectionable for being a conclusion. It seemed to me that the words “this was done at my suggestion” are not objectionable yet the words that follow “so we could retain” to the end of that sentence remain a conclusion. This witness is not able to say why the relevant act was done. She can only say that it was done, however. In my view, the last sentence should stop at the word “suggestion”.
In paragraph 83 the applicant expressed her concern about a particular. The objection raised related to a conclusion of relevance. To my mind relevance was not the appropriate basis for objection. The parties’ tax liability was and always has been an issue in this case. The form of the evidence is objectionable because the witness purports to express a state of mind yet she gave no forensic foundation for that state of mind. Alternatively, if paragraph 83 was no more than a chronological precursor to obtaining strategic investment advice, the best evidence of that was a statement of the evidence she actually obtained and her steps to obtain that strategic advice. In my view the objection to paragraph 83 was valid. I uphold it.
Paragraph 84 contained the applicant’s evidence that she spent “the best part of” two years investigating a particular parcel of land. Objection was taken to her use of the words “the best part of” those two years. It was said that the phrase “the best part of” was a conclusion. Alternatively, objection was taken to the form of the words used by which I take the objection to mean that the words are imprecise. I do not share the respondent’s enthusiasm for the so-called noxious aspect of the impugned phrase. In ordinary parlance “the best part of” means the lion’s share, “the majority” or simply “most”. The applicant was perfectly entitled to give that evidence howsoever imprecise it may have been. I overrule the objection to paragraph 84.
The respondent contended that paragraph 85 suffered from the vice that the words “I proposed to Mr Enmore” was a conclusion. It may well be said that the verb “to propose” represents a constellation of separate elements and that better evidence should be adduced of each precise component of the proposal. In this instance, the elements of the arrangement constituted in the proposal were not given with the consequence that the respondent objected arguing that the mere use of the phrase “I propose” was a conclusion. I agree. In its current form that phrase is objectionable.
As to paragraph 90 the respondent objected to the form. He did not say in as many words but I took him to be contending that the applicant’s use of the phrase “we would” injected a degree of speculation to her evidence because she did not state positively that she did a particular thing. In its current form, that sentence is in fact objectionable.
Paragraph 97 introduction was said to be objectionable in form for being a conclusion or opinion. I do not agree that the first sentence suffers from any of those defects.
It may be said that in the second sentence the phrase “I counselled” was objectionable in that it omitted a reference to who said what to whom by which it was possible to deduce that the applicant counselled the respondent in the way she asserted. The second sentence is therefore objectionable.
Paragraph 97.1 contained a reference to what the witness says she “would have” done. That is not evidence of what she did do. In that form the sentence is objectionable.
Paragraph 97.3 was the subject of objection on the basis that it contained an opinion or a conclusion. In that paragraph the applicant stated that she kept up with changes to government legislation that permitted borrowings by self-managed superannuation funds, especially those where the lender was a third party. Her statement that she was knowledgeable about those matters was in my view within the purview of a finance professional to express in the same way as a barrister who practises in commercial and equity cases can say that he or she has very limited knowledge of the criminal law. I overrule the objection of paragraph 97.3.
The form of paragraph 97.4 was the subject of objection. The real grievance about the assertions in that paragraph seemed to me to relate to the absence of facts to support the assertion in the first sentence that the business was expanding. In the absence of such facts the statement that the business was expanding was a conclusion. The first sentence is objectionable. The second sentence is not, however.
In paragraph 97.5 the applicant stated that she set about making “all necessary” enquiries yet, she did not say what those enquiries were, nor did she say why those enquiries were necessary. The respondent objected. I uphold the objection.
Objection was next taken to paragraph 97.6 on the basis of form. While not expressly stated, the defect of form seemed to be the inclusion of evidence that the applicant and respondent agreed to purchase the land there stated. Yet the details of who said what to whom were not given. In its current form, the paragraph is objectionable and I uphold the objection.
The phrase in paragraph 97.8 “and for similar reasons as set out above” was the subject of objection. That phrase appeared in evidence adduced after more than 97 preceding paragraphs. Nowhere could it be identified what the “similar reasons set out above” were. In that form those words were objectionable.
The words “all of” in reference to the arrangements to establish the trust mentioned in paragraph 98 was the subject of objection. To my mind the applicant’s failure to set out the steps she actually took and those that were necessary rendered meaningless her statement that she attended to all of the arrangements necessary to establish their trust. Those words were objectionable.
Likewise in paragraph 102 she failed to identify what were the dealings said to constitute “all dealings” rendering the word “all” properly the subject of objection.
In paragraph 105 the applicant asserted that it was apparent to her that the company was not making the profit it could have made. She was a finance professional, perfectly able to speak of the company’s profitability. I overrule this objection.
The respondent contended in paragraph 106 that the applicant expressed an opinion when stating that she implemented procedures to ensure stricter internal control levels. That was the subject of objection. I disagree. She was a finance professional, and capable of addressing internal control mechanisms. I overrule this objection.
Paragraph 107 drew objections for being an opinion, a concession, or for being defective in form. She was able to express an opinion about profitability given her professional qualifications. She was also able to express the opinion there stated. The second sentence, but only it, suffered from a defect of form. I uphold the objection in relation to the second sentence but overrule the objection in relation to first and third sentences.
In paragraph 109 the applicant stated how she applied dividends she received from J Pty Ltd. Objection was taken as to form. In my view there was nothing objectionable about the form used in that paragraph. I overrule the objection.
An objection as to form was taken in respect of paragraph 110, first sentence. The applicant stated that she and the respondent agreed that she should become a shareholder in J Pty Ltd. The form said to be defective was that she did not state who said what to whom. That was true. The first sentence was objectionable. The objection may well be purposeless in the overall, however.
In paragraph 112 the applicant stated that the respondent was not good with staff issues. The objection taken was that the paragraph represented a conclusion, unsupported opinion or it was defective in form. I agree.
Paragraph 113 contained a statement that the applicant had ascertained that an employee fraudulently altered a medical certificate resulting in the termination of that employee’s employment. The detail of how the applicant ascertained that fraudulent activity was involved in the procurement of that medical certificate was not given. Objection was taken. The first sentence was objectionable by reason of the absence of that information and also by reason of there being no information to support the fraud assertion. However the applicant’s evidence about her terminating the employee’s employment was not objectionable.
I reject the objection to paragraph 114. The applicant’s evidence that she liaised with the apprenticeship board was in an acceptable form and was given in the first person.
Paragraph 116 attracted objection. In it the applicant stated she was very involved in the interviewing of staff. It was said that such evidence represented a conclusion. Had she said it in the first person singular past active tense, that she interviewed staff, no objection could have been taken. To my mind this is no different. I overrule the objection.
To say she oversaw leave entitlements as she did in paragraph 117 was a conclusion as she failed to say what she actually did. This paragraph was objectionable.
In paragraph 118 the applicant stated in essence that she performed the functions a chief financial officer normally performs. The respondent objected. In my view the objection was well made. The roles and duties of chief financial officers take many mixed and varied forms. It is near impossible to say what roles CFOs “normally perform”. The evidence was near meaningless in its current form. In the first sentence the objection is upheld.
In paragraph 120 the applicant said she caused the transition of the home at C6, H Street into commercial premises. That evidence was the subject of objection on the basis that it was a conclusion. There is merit in the objection.
In paragraph 123 the applicant stated that when she commenced her relations with the respondent J Pty Ltd had no employees and worked with subcontractors. That was the subject of objection. I disagree. Each was a statement of fact. I overrule the objection.
The respondent objected to paragraph 141 in which the applicant stated that in July 2016 her relationship deteriorated quite rapidly. True, she did not give details of the particulars that indicated that a deterioration in the relationship occurred. However, it is an everyday occurrence in this court for one party to pinpoint a month in a year during which he or she asserts that a noticeable change occurred in his or her relationship with the other. I overrule the objection.
Between paragraphs 142 to 146 the applicant gave details of her version of events illustrating the deterioration of her relationship with the respondent.
Paragraph 142 was hearsay and hence inadmissible.
In paragraph 143 the words in parenthesis purport to be direct quotations yet no notes of contemporaneous conversations were put in evidence. They are objectionable.
The same comments apply in respect of paragraph 144. Each was inadmissible.
However, in paragraph 145 a statement was set out of fact in the form of direct evidence. I overrule the objection in respect of that paragraph.
In paragraph 146 the applicant recalls that the respondent told her that he had formed a relationship with another woman and that his relationship with the applicant was over. That evidence was far from objectionable. It was probative as to the cessation of the relationship between the parties in this case. I overrule the objection to paragraph 146.
In paragraph 147 the applicant stated that the respondent commenced a relationship with a woman called Ms K in December 2016. The respondent objected to the word “commenced”. He said that was a conclusion. Strictly, that was correct. The use of the word “commenced” in paragraph 147 in upheld.
In paragraph 149 the applicant said that the period after separation was personally difficult for her. Objection was taken on the basis that such evidence was a conclusion, it was irrelevant, it was expressed in defective form or it was otherwise opinion evidence. Of those objections taken, relevance seemed to me to be the more important. That evidence does not seem to have been adduced on some In the Marriage of Kennon[2] basis. In my view, it was irrelevant. I uphold the objection.
[2] (1997) 22 Fam LR 1.
The respondent objected to the whole of paragraph 150. I accept the third and fourth sentences were irrelevant but the first two sentences were not in that category. I upload the objection in relation to the third and fourth sentence but overrule it on all grounds in relation to the first and second sentences.
Between paragraphs 151 to 161 the applicant purported to give evidence concerning an allegedly unpaid sum to a creditor. The creditor was said to be one Mr L. As a result of certain contact between Mr L and the applicant, Mr L took out an APVO against the applicant, so she asserted. The respondent objected to that evidence going in. It seemed to me to be irrelevant or its relevance was highly tenuous and I uphold the objection.
Paragraph 163 was the subject of protest insofar as the introductory words “as a result” were concerned. They were superlatives. They should be excised.
Paragraph 165 was the subject of objection to the extent that the applicant asserted that she conducted “the majority of” homemaking duties. For reasons mentioned above the words “the majority of” are to be taken to mean the lion’s share or more than half. I see nothing noxious in the use of that phrase in paragraph 165 even though the applicant’s evidence thereof is no more than her contention as to the division of time and labour.
The word “considerable” appears in paragraph 166 in the context of the applicant’s contention about the time she spent on managing the couple’s personal finances. The word “considerable” imports a meaning comparable to “more than inconsequential” yet it is imprecise and may mean different things to different people. In my view, left unquantified the word “considerable” is meaningless and is therefore objectionable.
Objection was taken to the reference in paragraph 170 of the applicant’s affidavit about her providing all account statements. I disagree that “all” is a conclusion in this context. It means the totality. I overrule the objection to paragraph 170. If it transpires that at a factual level the respondent considers he can prove otherwise then he can cross-examine the applicant on the point.
The respondent submitted that the statement in paragraph 173 to the effect that the applicant had provided ongoing disclosure in relation to all accounts and credit cards was objectionable for being a conclusion. I take her statement at paragraph 173 to be that, in respect of all her bank and credit card accounts, she has since May 2019 provided ongoing discovery. That is not objectionable. She is not required to provide particulars of her statement.
The respondent objected to paragraph 178. In it the applicant stated she had been removed from the workforce and had been unable to compete with a younger and more affordable labour market. All but the final sentence was the subject of an objection. It seemed to me that there was force in the objection. Reference to a younger and more affordable labour market was near meaningless without knowing details of that younger and allegedly affordable market. I uphold the objection.
I reject the objection to paragraph 179 and I overrule the objection to paragraph 180. The applicant’s evidence in that regard is direct and should be allowed.
Paragraph 181 is little more than speculation. I uphold the objection to it.
In paragraph 184 the applicant purports to record her understanding of the details of the respondent’s relationship with Ms K. She states she has not provided details of that relationship. The second sentence of that paragraph is a matter for me. The first sentence is the applicant’s understanding. To the extent that the respondent corroborates that relationship, I overrule the objection.
Paragraph 186 is not a factual matter but a matter of speculation which I accept as objectionable.
That deals with the objections to the applicant’s evidence. Let me now go to the evidence of the respondent. The respondent has made several affidavits. I am now addressing the affidavit made 5 December 2020.
Affidavit of Mr Enmore made 5 December 2020
The first objection related to the whole of paragraph 4 on the grounds of relevance. That paragraph seemed to address the circumstances in which the applicant and the respondent met. In that paragraph the respondent purported to report verbatim a precise sequence of conversations that took place between the two. I agree that the circumstances there recorded are irrelevant and I uphold the objection.
In paragraph 5 the respondent recorded the details of the first of five years of his relationship with the applicant. In it he purported to assert that she did not differentiate between her description as a tax professional or any other form of finance professional. That may assume some relevance in this case but at the present time it seemed to be unimportant background as to the matters that fall for my determination and I uphold the objection.
In paragraph 6 the applicant purported to record his construction of the freedom of choice and how it was allegedly overborn by the applicant. I am unable to see the relevance of that and I uphold the objection.
Paragraph 19 recorded an event said to reflect the deterioration of the relationship between them, this time, during a conversation at M Street, Suburb N that seemed to me to be on the periphery of relevance. I take the view that there are much more important matters that fall for my determination in this case. I regard it as irrelevant and therefore reject the evidence.
In paragraph 20 the whole of the paragraph was the subject of objection. It addressed factual matters such as the alleged tone during which the couple communicated, the state of their aggression and an assertion about the applicant describing the respondent as stupid. I fail to see the relevance of that and I uphold the objection.
The affidavit in this case dated 5 December 2020 may have been prepared with legal assistance but it contains matters that go beyond the style of affidavits that I am used to seeing in this court, including the sequence of numbering. In the second half of page 7, paragraph 19 appears for the first time. In it the respondent purported to record disagreements between the two and the respondent’s alleged reluctance to posing questions of the applicant. At this stage I am unable to see the relevance of that evidence and I uphold the objection to it.
On page 7, out of sequence with paragraph 19 is paragraph 20 which I have already canvassed.
At the foot of page 7 of the affidavit is paragraph 21. In it the respondent was purporting to convey the allegedly intrusive inquisitive nature of the applicant. I am unable to see the relevance of that evidence in this case and I uphold the objection.
At the top of page 8 of the affidavit is paragraph 22 in which the respondent recorded that no matter what he was doing, he became concerned with the anger level to which the applicant would rise. Again, that seems to me to be peripheral to the matters that fall for my consideration in this property division case.
In paragraph 23 the respondent recorded that the applicant asked him on multiple occasions each day what he was doing. That evidence is irrelevant to the matters that fall for my determination and therefore I uphold the objection in respect to paragraph 23.
Paragraph 24 was the subject to an objection for relevance. In it the respondent recorded that he did not complain yet he asserted that he suffered discomfort as a result of the exchanges with the applicant. I fail to understand the relevance of that.
In paragraph 25 an objection was taken about relevance. The respondent said he was embarrassed when persons made the comments in social circumstances there set out. I am unable to see the relevance of that evidence to the matters that fall for my determination in this case.
Paragraph 26 is the subject of objection as well on the basis that the question of the applicant’s alleged intimidation of the respondent was irrelevant. I agree. It was irrelevant and I uphold the objection in respect of paragraph 26.
Part of paragraph 31 was the subject of objection. The arena of debate commenced in line 5 with the sentence beginning “even if I had chosen to try to access those records”.The basis of the objection was relevance and form. To my mind the objection went further in that a high level of speculation was injected into that evidence, which I found unhelpful in the resolution of the matters for my determination. I uphold the objection.
In paragraph 32 the respondent purported to record many instances in which he said he was subjected to the applicant’s allegedly violent behaviour by her abusive verbal assaults on him. Unless that can somehow be brought under the rubric of In the Marriage of Kennon[3] violence, I am unable to see the relevance of it. At the present time I am minded to uphold the objection. If it turns out that the respondent presses for the inclusion of that evidence I will entertain an application to adduce viva voce evidence on the point.
[3] (1997) 22 Fam LR 1.
Paragraph 33 was the subject of objection in its entirety on the same basis, namely alleged by aggressive behaviour in telephone conversations between the applicant and the respondent. At the present time I am unable to see the relevance of it.
Paragraph 35 purported to record the fact that the respondent was “in the dark in many respects” concerning the state of the asset position between the parties. He has made certain evidentiary obligations in this case and to say that he is “in the dark” may or may not enhance his credibility in this case. I shall leave that for later determination. On the basis of relevance I uphold the objection in respect of paragraph 35.
In paragraph 37 the respondent asserted that upon separation he knew very little of his own affairs and those of his business. That may well be the fact but it does not bear upon matters that I have to determine in this case. If it goes to his overall veracity then that might be the subject of cross-examination. As to the adduction of the evidence-in-chief from this respondent, I will not allow it in that form. I uphold the objection in respect of paragraph 37.
Paragraph 39 purports to record an entitlement of the applicant to be paid by reason of an agreement reached to that effect. While it is true that the details of who said what to whom by which a conclusion could be reached as to the agreement allegedly arrived at were not given, paragraph 39 purports to record some agreement. The objection is to the words “because I had agree to pay…PAYG deductions”. For reasons mentioned earlier, this seemed to be evidence where the person does not adduce the details of who said what to whom by reason of which a court is unable to independently arrive at a conclusion of the phenomenon of consent. I uphold the objection.
Paragraph 41 purports to record a statement that the respondent took the view that the applicant controlled J Pty Ltd’s financial circumstances and he could not do anything about that. That did not appear to me to be a fact in issue in this case, or at least not his version of a fact in issue. The objection may be broader than the evidence, namely that paragraph 41 is addressed to a state of mind and no basis is given of that state of mind. I uphold the objection.
Paragraph 42 is the subject of objection on the basis of relevance. In that paragraph the respondent said that he was still afraid, but by reason of certain events he found the gumption to say certain things. I am unable to understand the relevance of that evidence. I uphold the objection.
In paragraph 43 the respondent deposed to unauthorised drawings of wages. He does not say on what basis he asserts that the wages allegedly drawn were unauthorised. I am not willing to conclude that they were in fact unauthorised in the absence of such evidence. Beyond that, the respondent purports to record how the applicant said nothing to him about his absence in the weeks following separation. That is very much on the periphery of matters that fall for my determination in the case. I uphold the objection on the grounds of relevance.
Paragraph 44 addresses a discovery made at the time of separation. He says that he had not expected the applicant to do what is recorded in paragraph 44. His expectations are neither here nor there and precisely why his anxiety and upset was increased addressed a matter that goes beyond those that I have to determine in this case. I uphold the objection on the basis of relevance.
In paragraph 45 the respondent asserts that he consulted a psychologist and psychotherapist as well as a psychiatrist. He purports to record his lay version of his psychological disposition at the time and he concludes that he was very unwell. If that evidence is to be probative it should have been the subject of psychiatric, psychological and psychotherapeutic evidence. I will not allow it in its current form. I uphold the objection is respect of paragraph 45.
In paragraph 46 an objection is taken as to relevance in that the respondent says, in substance, that he suffered from unwellness that he regarded as being debilitating, leading to his handing over this case to a case guardian. If that evidence is to be probative and pivotal in the determination of the matters that fall for my consideration it should be the subject of proper medical evidence. In the absence of that medical evidence, I do not allow paragraph 46 largely for the reason of relevance.
Paragraph 47 addresses four years of his state of upset and his attempts to recuperate and recover his emotional health. I regard that as being irrelevant to the financial issues that have to be determined in this case.
In paragraph 48 he states that his work had been difficult in recent months. That may or not be the case but unless it translates to something recognised under the Family Law Act I am unable to see the relevance of it. At the moment I am minded to not receive paragraph 48 but if counsel can persuade me that it has a relevance that I presently am unable to detect, I will hear further on the point.
Paragraph 50 purports to record the respondent’s state of exhaustion by working seven days a week and communicating with his instructing solicitor. Again, that seems to me to be on the periphery of matters that fall for my determination, and while I am sympathetic to his circumstances, he is far from on his own, suffering from those conditions during litigation in this court.
In paragraph 52 the respondent spoke of a major source of his anxiety rising in 2013. No medical evidence was adduced to that effect so it seems to me that in its current form its relevance is on the periphery.
In paragraph 53 objection was taken to relevance. In that paragraph the respondent purported to record activities over the previous two decades of his opening accounts with J Pty Ltd and other businesses. I am unable to see the relevance of that evidence and I therefore reject paragraph 53 on the grounds of relevance.
Paragraph 54 was the subject of objection on the grounds of relevance. In it he said that he was not aware, until a particular date not given, of his shareholding or that the applicant was ever a director of J Pty Ltd. That may be true. It is undoubtedly going to be the subject of cross-examination so I overrule the objection to paragraph 54 and allow that evidence to stand.
In paragraph 55 the respondent purported to record a discussion about the subject of the applicant becoming a shareholder in J Pty Ltd. He purported to quote verbatim who said what to whom. No notes of a contemporaneous nature were given by which he could quote allegedly verbatim of who said what. Undoubtedly, the circumstances of the events by which the parties became shareholders in J Pty Ltd will feature in this case, no doubt in cross-examination. However paragraph 55 in its current form is inadmissible and I do not allow it.
Paragraph 56 purports to record a conversation with Mr Z about directorships of the company. A discussion of that nature might provide fertile ground for cross-examination but the records of the Australian Securities and Investments Commission will be evidence, and in some circumstances, conclusive evidence of the dates and fact of directorships. The conversation that the respondent deposes to involving Mr Z seems to be either hearsay or peripheral and on that basis I disallow paragraph 56.
Paragraph 57 contains an assertion of the deteriorating nature of the relationship between the two leading to what he says was the break of the applicant’s word and his trust in her. I am unable to see the relevance of that evidence and I uphold the objection to paragraph 57.
Paragraph 58 appears to be commentary and little more. It is not probative of the matters that fall for my determination in this case and I uphold the objection to it.
In paragraph 59 the respondent asserted that at no stage did he ever cede any control to the applicant. That is a factual matter for me and the respondent’s construction of what happened will be the subject of findings by me. As it presently stands paragraph 59 is a conclusion and I uphold the objection to it.
In paragraph 60 the respondent purports to record his feelings of dysfunction following separation. Precisely how that is said to be determinative of the matters or even relevant to the matters that I have to consider and find is none too easy to distil. I uphold the objection in respect to paragraph 60.
In paragraph 61 the respondent refers to the applicant allegedly tricking him into signing or otherwise causing a notice of shareholding in J Pty Ltd to be provided. The facts that give rise to his statement that the applicant had arranged to trick her is a conclusion of a highly nefarious nature and smacking of serious poor conduct. If I were to place any store in the assertion each and every act, fact, matter, circumstance and thing by which it was possible to reach the conclusion of trickery would need to be set out. In its present form the assertion of trickery is a mere conclusion, and I uphold the objection to paragraph 61 on that ground.
In paragraph 62 the respondent deposes to instructions to a firm of solicitors, in which paragraph he concludes that it might not be too late to rectify the situation. Objection was taken on the ground of relevance. Another and better objection is speculation. I uphold the objection in respect to paragraph 62.
In paragraph 63 the respondent deposed to his being unable to say whether signatures appeared on documents and in some instances he took the view that certain documents may be forgeries. Those assertions fit into the same category as those mentioned above in respect of trickery. In the absence of a statement of all acts, facts, matters, circumstances and things by which it could be sensibly asserted that a forgery was engaged in, I am unable to allow the evidence in its current form. I uphold the objection in respect to paragraph 63.
Paragraph 67 and exhibits E 4, 5, 6, 7, 8 and 9 purport to the respondent seeking legal advice from a firm of solicitors. Aside from the fact that by introducing that evidence any privilege that may have obtained has been waived, the relevance of the substance of the advice is difficult to see at the present time, and I take the view that the objection is maintainable. That said, nothing would prevent cross‑examination of the appropriate witness of exhibits E 4, 5, 6, 7, 8 and 9. But at this stage I uphold the objection in respect to paragraph 67 and the exhibits at the present time.
In paragraph 68 the respondent deposed to the applicant being intoxicated. Precisely how that bears upon matters that are in issue in this case remains to be seen. At the moment I will not allow that evidence to be adduced unconnected to any other event. I uphold the objection in respect to paragraph 68.
Paragraph 71 was the subject of objection. The first sentence appeared to me to be in proper form, but not the balance. In the balance of the paragraph, following the words “J Pty Ltd”, the respondent reported to record verbatim a conversation with Mr Z and no basis was given for the accuracy of an alleged verbatim conversation. I uphold the objection on the grounds of relevance and hearsay.
Paragraph 72 purported to record the respondent’s inability to face the prospect of the applicant being “there” which I took him to mean being present in court while prosecuting a case about her shares. That evidence was very much on the periphery of the main issues that fall for my determination in this case and I uphold the objection as to relevance.
In paragraph 73 the respondent purported to his “chickening out” of a confrontation with the applicant in the Supreme Court of New South Wales. He stated in that paragraph that he was embarrassed as a result and still feels a sense of embarrassment. I am unable to see the relevance of that and I uphold the objection to paragraph 73.
In paragraph 74 the respondent purported to record that he was relieved the applicant was no longer sharing his office. That evidence may be relevant to the chronological interaction between the parties but I am unable to see how it goes to a matter that assists in my determination of this case. I uphold the objection.
In paragraph 75 the respondent purported to record a conversation he had with himself. It may be that such evidence bears upon his subjective state of mind and provides an explanation for his behaving in a particular manner. He does not say that. It is irrelevant and I reject the evidence in paragraph 75.
In paragraph 76 the respondent recorded that he was told that litigation in respect of the share in J Pty Ltd was to be expensive and he was disappointed with that. He said he consulted a different silk and reached a conclusion about his course of conduct based on that. Again, to the extent that such information somehow explains his ongoing behaviour, I am more interested in what he later did rather than his subjective thought processes in getting to the point that he did something. Paragraph 76 is objectionable for irrelevance.
Paragraph 77 records his advice to the effect that he may have grounds to litigate aspects of J Pty Ltd, especially forgeries. For reasons already mentioned, an assertion about forgery requires more than the utterance of the mere word in order for it to be probative and I am not assisted by paragraph 76 in its current form. Objection was taken on the grounds of relevance and hearsay. I agree and uphold the objection.
In paragraph 78 the respondent purports to record matters of family law and principles associated therewith, especially what is within and without of the jurisdiction of this court. The respondent did not purport to give evidence as a legally qualified legal practitioner. To the extent that he purports to express the opinions of law, I reject them. Not only is paragraph 78 replete with submissions but it is replete with submissions on matters of which he is not qualified to express an opinion and therefore under principles espoused in Dasreef Pty Ltd v Hawchar[4] I do not accept the evidence in paragraph 78 and I uphold the objection on the grounds of relevance and the purported expression of legal opinion.
[4] (2011) 243 CLR 588.
In paragraph 79 the respondent purports to record his confusion with certain things. Once again, his statement of his subjective state of mind is not a matter that falls for my determination. I uphold the objection for relevance.
In paragraph 80 he recorded an appointment with a psychiatrist on one day and a psychotherapist the next. He did not exhibit any medical reports from either professional. I am unable to see the relevance of that evidence and I uphold the objection.
Similar observations apply in respect of paragraph 82 and I uphold the objection on that ground. In paragraph 82 the respondent records his relief to find out that the employment of the applicant could be terminated. Precisely how that features in the array of matters that fall for my determination is not easy to say. I uphold the objection for irrelevance.
The respondent in paragraph 85 asserted that he signed documents at the request of the applicant at a time when she was affected by alcohol and inebriated. It is difficult to understand the relevance of that. One might imagine the person affected by alcohol to take exception to the legal effect of a document signed during a state of inebriation. But he does not put the evidence on that basis. I do not follow the relevance of paragraph 85 and reject it on that basis.
In paragraph 86 the respondent purports to record that he found a recycle bin full of empty bottles of alcohol. To my mind that evidence is irrelevant in this case.
In paragraph 87 the respondent recorded evidence of a dog barking, wholly irrelevant. I uphold the objection.
In paragraph 88 the respondent recorded a purported exchange between the applicant and neighbours in AA Street where she allegedly shouted at the neighbours. Precisely how that is said to be relevant in this case is beyond me. I uphold the objection.
In paragraph 89 the respondent asserted that he drank alcohol on occasions. Once again, this case has many other more important features for consideration beyond his alcohol consumption. I am unable to find the relevance of that paragraph and uphold the objection in respect of it.
Paragraph 91 fits into the same category and I also uphold the objection in respect of that.
In paragraph 92 the respondent recorded that he took the view that it was better for him to work late than to go home to F Street. I am unable to see the relevance of that evidence and uphold the objection to it.
Paragraph 93 was a statement by the respondent to the effect that he is unable to say how many days a week the respondent worked at J Pty Ltd. His inability to give evidence is a curious approach and one that I am unable to understand at an evidentiary level. Objection was taken on the basis that it is either irrelevant, a submission or the expression of opinion. On any one of those grounds I support and uphold the objection.
Paragraph 94 recorded how the applicant apparently derived income from BB Group and other sources. Objection was taken to relevance. I overrule the objection. It is relevant.
Paragraph 95 contains an inquiry by the respondent in which he questions the nature of the relationship between a man called Mr V and the applicant. Specifically, the respondent says he was not sure whether the relationship was one of consultancy or employer-employee. Objection is taken to relevance. I agree. I am unable to see the relevance of that evidence.
In paragraph 96 the respondent asserted that Mr V told him, the respondent, that the applicant was not a tax agent. Objection is taken to paragraph 96 on the grounds of hearsay. That is quintessential hearsay and I uphold the objection. Whether or not the applicant was a tax agent will be determined by other evidence, not a statement allegedly given by Mr V as relayed through the respondent.
In paragraph 97 the respondent deposed to information that he said “rattled” him, namely, the possibility of an ATO audit. Objection was taken to that paragraph on the grounds of relevance and hearsay. There might be another basis, namely, the expression of a state of mind, namely, his state of being “rattled”. Precisely the relevance of such a feeling is neither here nor there and whether he felt extremely anxious or sometimes dysfunctional in any way related to that seems to me to be beyond the matters that I have to determine in this case. I uphold the objection to paragraph 97.
In paragraph 101 the applicant deposed to his birth as to its place and as to his parentage. Of course, he can depose who his parents are but a basic evidentiary objection is as to the phenomenon and date and place of one’s birth as given by the deponent. I uphold the objection in respect of paragraph 101 as to relevance and other grounds.
In paragraph 102 the respondent deposed to his formative years, being raised by a single mother. Precisely how that was said to be relevant was not explained. I uphold the objection in respect of that paragraph.
Paragraph 103 contains the respondent’s assertion as to his mother’s remarriage and the reason for it. The objection taken was one as to relevance. I agree. It is also hearsay. Paragraph 103 should be excised from the evidence in this case.
In paragraph 104 the respondent deposed to his primary school education, his high school education and his induction into the Defence Force. At the moment, no issue in this case appeared to revolve around any of those things. I am unable to see the relevance of it. I uphold the objection to paragraph 104.
In paragraph 105 the respondent deposed to the commencement of his apprenticeship with an industrial refrigeration enterprise. That may explain how he came to work in the field in which he presently does. But it bears little, if at all, on the matters that fall for my determination. It might be part of the res gestae in this case, but nothing beyond. I uphold the objection as to relevance.
In paragraph 106 the respondent deposed to the commencement of a business called P Business which he ran from his car, so he said. Objection was taken on the grounds of relevance. I agree.
Paragraph 107 spoke of matters entering chronologically into significance in this case, namely, the commencement of a business called Q Consulting, which he said he registered in 1997 or 1998 or thereabouts. Objection was taken as to relevance. Albeit peripheral, I see the relevance of the commencement of the company that the parties are fighting over in this litigation. I therefore overrule the objection.
In paragraph 109 the respondent spoke of the first year of business in which a particular amount was derived. Objection was taken for hearsay. Aside from that, this case does not concern, except at the high point of the periphery, the early operations of the business in the year 2000. The objection as to hearsay is well-made but relevance is equally well-made and I uphold the objection.
In paragraph 111 objection was taken to the location of which the respondent stayed after separation. To my mind that does not bear upon the matters that fall to be decided in a property case of the sort in issue in this case. I uphold the objection to paragraph 111.
Paragraph 112 involved an objection to the first line. It seemed to me that the sentence commencing on the first line, “on 13 December 2016”, was unobjectionable and accept the objections insofar as the first seven words are concerned but otherwise overrule the objection as to admissibility.
Paragraph 115 is the subject of objection in the overall. It deposed to emergency work undertaken by the respondent in recent weeks. Relevance was the subject of objection. I am unable to see the relevance at paragraph 115 and uphold the objection.
In paragraph 116 the respondent spoke of his difficulty in estimating how much time on average he spends per week. He said that it was not uncommon for him to work more than 100 hours per week during the relationship, although he did not identify the duration of the relevant specific activity. I accept that he was hardworking. I overrule the objection as to relevance in respect of paragraph 116.
In paragraph 117 the respondent deposed to his not having taken any sick days for over 10 years. Howsoever that might bear upon the issues in this case I overrule the objections as to relevance.
In paragraph 119 objection was taken as to relevance. To my mind paragraph 119 did not contain a probative fact in issue in this case. I agree it was a submission, but paragraph 119 also contained largely irrelevant material. I uphold the objection.
Paragraph 120 deposed to the respondent’s objective state of mind and, to my mind, went nowhere. I uphold the objection as to relevance.
In paragraph 121 the respondent asserted that he was happy to employ the applicant in 2006. Relevance was subject to objection. I am unable to see why the respondent’s happiness to employ the applicant in 2006 is relevant or a matter that I have to determine in this case.
Two paragraphs 122 appear on page 24 of the respondent’s affidavit. In the first, commencing from the second paragraph, the respondent says he is not a tax expert, although he purported to give evidence about certain pay entitlements. By reason of his opinion alone that he is not a tax expert, his statement from that sentence to the balance of the paragraph is properly the subject of objection for being a conclusion or opinion evidence and I uphold the objection in respect of it.
In the second paragraph 122 the respondent purported to record his contentions that he and the applicant jointly met expenses for the acquisition of property as well as personal property and they serviced loans. Expressed as broadly as that the evidence is near meaningless because he does not descend into details of which property, which aspect of personal property, which loans and which joint expenses were the subject of his statement. I uphold the objection in respect of the second paragraph 122.
In paragraph 124 the respondent asserts that the applicant revealed certain income in her financial statement. He then says in the second sentence of that paragraph that he did not know how the investment giving rise to the income was derived. The balance of that sentence seemed to me to be objectionable on the basis that he gave no factual basis for the contention that the applicant did retain the proceeds of a loan she undertook. I accept the contention that everything from the words “although as set out below” is the subject of objection.
In paragraph 125 the respondent says that he is unable to say whether the statements recorded in that paragraph are correct or not. That is a most curious statement of evidence. It is the subject of objection for irrelevance and I uphold the objection.
Paragraph 126 was the subject of objection as to the whole. It seemed to me that the second sentence is the subject of a valid objection in the sense that it comments on a financial statement filed by the application. However the first sentence is admissible it seemed to me.
Paragraph 127 contains an expression of puzzlement by the respondent over what the applicant might have done with the money alleged. That is not the proper basis for a statement of fact which, after all, affidavits should contain. Paragraph 127 is not in an admissible form and I uphold the objection in respect of it.
I overrule the objection in respect of paragraph 128.
Insofar as paragraph 129 is concerned, it seemed to me that the first three lines up to the words “I had sufficient access” are the subject of objection for being a submission, but thereafter, the balance of the paragraph is admissible.
In paragraph 130 the respondent deposed to the applicant’s perennial and absolute secrecy. Those are pejorative words that rarely attract a favourable consideration by a court. I am not impressed by them in that context and am unable to see the evidentiary foundation for the statement. I accept that paragraph 130 contains a submission as to secrecy allegedly engaged in by the applicant and I also uphold the complaint that the paragraph deposes to irrelevant material.
Likewise, in respect of paragraph 131 the respondent speaks of his suspicion about the applicant’s veracity. That is not for him to say. That is a matter for me. I reject the contents of paragraph 131 and I uphold the objection on the grounds of relevance.
In paragraph 132 the respondent deposed to his instructions to his solicitor to query what appeared to be payments by J Pty Ltd to the applicant. Thereafter he records verbatim what he said in an affidavit made on 23 October 2019. It is not appropriate for him to paraphrase his affidavit or set it out verbatim here. I can read that if it is at all relevant. Unless it is the subject of the evidence to be adduced in this trial, it is irrelevant. I uphold the objection in respect of paragraph 132.
Paragraph 133 was the subject of objection. In it he asserts that he is not satisfied in any way that the applicant has provided him with information sought. It is not for him to say that he is not satisfied. That is properly the basis, if it is at all relevant, of application during the trial. I uphold the objection to paragraph 133.
In paragraph 146 the respondent purports to record the absence of response to documentation in relation to a subpoena. Objection was taken on the grounds of relevance. I agree. I am unable to see the relevance of that. More importantly, it is a submission and not a matter of fact to which a lay witness should be deposing.
In paragraph 147 from lines 6 to 17, the respondent deposed to what he refrained from doing. Objection was taken to relevance. I uphold the objections. I am unable to see how his refraining from doing certain things is probative of a fact in issue in this case.
In paragraph 148 the respondent again deposes to the applicant’s alleged secrecy, apparently, in this context, taking up to two shares in J Pty Ltd. Secrecy, like a species of fraud, must be strictly proved and I will not allow it to be adduced by a side wind, as it appears in paragraph 148 of this trial affidavit. I uphold the objection in respect of paragraph 148.
In paragraph 149 the respondent deposed to his belief that the applicant would not reveal to him anything she did not wish to reveal to him. That is no more than his subjective state of mind and not probative of a fact in issue in this case. It follows that it is irrelevant and I refuse to allow paragraph 149 in its current form.
In paragraph 150 the respondent purported to record verbatim words used, allegedly, by the respondent, all unpleasant in nature. No details were given from contemporaneous notes from which the contents of paragraph 150 were extracted. In those circumstances I uphold the objection on the grounds set out in respect of paragraph 150.
In paragraph 153 the respondent recorded that, in his view, there was little information recorded by the applicant during 15 years of her controlling J Pty Ltd. Objection was taken on the basis that that statement represented an opinion, a conclusion or a submission. At the very least it is a submission as to the respondent’s belief of the existence, there set out, that he contends that there were little records of her years controlling J Pty Ltd. I uphold the objection.
In paragraph 154 objection is taken to the whole of the paragraph. It seemed to me that the word “although” to commence the paragraph is otiose and the sentence ending on line 3 represents admissible material. The five lines remaining of paragraph 154 are, in fact, caught by the objection. I allow paragraph 154 so long as it begins, “The applicant retained J Pty Ltd’s MYOB records” to the end of the third line, but not beyond.
Paragraph 155 records the respondent’s contentions about the state of computer records upon the departure of the applicant. Unless there is a claim as to wilful damage in this case specifically referrable to the MYOB records, I am unable to see the relevance of such evidence in this case. However, I will reserve to counsel an opportunity to persuade me of the relevance of paragraph 155, if he is able.
Paragraph 157 records an assertion that the applicant was disruptive in her conduct of J Pty Ltd. No particulars were given. In the absence of significant detail as to time, events and activity, I am unable to see the probative value of paragraph 157 and I accept that it is irrelevant for present purposes.
Paragraph 159 addresses the belief held by the respondent about the cost efficiency of J Pty Ltd and the failure by the applicant to overhaul certain accounts and invoicing procedures. Precisely how that is relevant in the property issues that I have to determine in this case is not stated. I uphold the objection.
Paragraph 160 contains an assertion about the replacement of the applicant. That has been met with three grounds of objection, namely, relevance, conclusion and submission. I agree with at least one of those, namely relevance, and uphold the objection.
In paragraph 163 complaint is made about a failure to lodge the respondent’s 2018 tax return until December 2019. At the moment I am unable to see the relevance of that.
Paragraph 164 addresses the respondent’s 2019 tax return and how it was not lodged until 19 November 2020. Again, the relevance of that evidence is very much on the periphery and I presently uphold the objection based on relevance.
The whole of paragraph 165 is the subject of objection on the grounds of relevance. I uphold that objection.
Paragraph 166 contains an assertion that the respondent’s 2017 tax return was lodged on speculation and that he needs to file an amendment. Whether or not that is the case, that seems to go beyond what I have to determine in this case. Moreover, the need to file some amending return may very well go beyond the expertise of the respondent. I uphold the objection in respect of paragraph 166.
Paragraph 167 represents little more than a guess. I will not receive evidence of guess work. Speculative evidence is not admissible.
Paragraph 170 speaks of the receipt by J Pty Ltd of notices from the ATO concerning penalties and interest. If that is somehow said to be a joint liability of the parties, then it may be relevant. But at the moment, evidence was not adduced to that effect. I uphold the objection.
Paragraph 171 purports to record advice received by the respondent that he is at risk of a time consuming audit. He does not say from whom that advice was obtained nor whether there was any foundation for it. On that basis the objection to hearsay is well founded.
In paragraph 172 objection was taken to relevance. In that paragraph the respondent spoke of his inability to access older transactions. To the extent that it may be useful in some way, I overrule the objection and allow paragraph 173.
In paragraph 173 the respondent deposed to his worried state of mind about the applicant’s employment with J Pty Ltd. His state of mind was largely irrelevant to the matters that fell for my determination and I uphold the objection as to relevance.
In paragraph 174 the respondent deposed to a state of puzzlement about how the applicant managed the property there described. I am not assisted at all by his state of puzzlement and therefore uphold the objection based on relevance.
In paragraph 175 the respondent deposed to the fact that his access to MYOB was not easy. I accept what he says in respect of that. To the extent that it may be relevant, I overrule the objection and allow paragraph 175.
Again, to the extent that it is relevant, I take the same view in respect of paragraph 176 and overrule the objection.
As to paragraph 178 the respondent deposed to the applicant’s allegedly secretive behaviour. For reasons already mentioned, I do not find his evidence of the applicant’s secretive behaviour to be probative or as to a fact an issue in this case and therefore accept and uphold the objection as to relevance.
In paragraph 179 the respondent spoke of the fact that he still knew very little about Y Property at W Town and the way it had been managed. I am unable to see how that is probative. It intrigues me how a witness who gives evidence about him not knowing very much expects that to be of value in evidence in this case. Paragraph 179 is therefore neither relevant nor probative.
Paragraph 191 appears to record something of irrelevance in this case, namely the differing instructions between the applicant and him, as has been provided to R Consultants. I am unable to see the relevance of that.
In paragraph 192 objection was taken to relevance but I overruled the objection, as I do in respect of paragraph 193.
Paragraph 194 seems to me to be irrelevant, as does paragraph 195.
As to paragraph 197 the fact that no reason has been given to the respondent for refusing to join with the respondent to pay certain accounting invoices, seems to me to be very much on the periphery in this case.
Paragraph 205 contains a submission as to the respondent’s knowledge and understanding of assets in his name. One of the issues that falls for my determination is the legal and equitable interests of the parties in accordance with principles espoused in Stanford v Stanford.[5] The understanding of the respondent is neither here nor there on that issue. The objection to relevance is well made and I uphold it.
[5] (2012) 247 CLR 108.
Paragraph 206 relates to the applicant’s recorded entitlements in J Pty Ltd. That is one of the issues for my determination in this case. The objection as to a submission is well founded and I uphold it.
In paragraph 211 the respondent spoke of his telling himself about some inexplicable substantial entitlement. That is not probative evidence in this case and the objection as to evidence is well made.
In paragraph 212 the respondent contended that, in retrospect, he was kidding himself on a particular matter. Likewise, that was not probative of a fact in issue in this case and I accept the objection as to relevance.
In paragraph 218 the respondent addressed the peaking of his frustration for matters raised earlier. His subjective state of mind and his emotional reaction to certain things is not evidence of a fact in issue in this case. The objection taken to relevance is well founded and I uphold it.
In paragraph 219 the respondent deposed to what his preference may have been on certain issues and he said he had no choice but to obey the applicant. That is not probative nor is it relevant to a fact in issue in this case. I uphold the objection to paragraph 219.
In paragraph 220 the respondent asserted that he did not know why the applicant insisted that he return certain mail. Likewise, that is not probative of a fact in issue in this case and I uphold the objection thereto.
In paragraph 221 the respondent deposed to having many domestic altercations but that he did not touch the applicant in anger, although he confessed to being afraid of her. Objection was taken to relevance, which I uphold. That information is not probative of a fact in issue in this case.
In paragraph 222 the respondent addressed the applicant’s arrangements for the return of certain J Pty Ltd correspondence. Precisely how that is said to be relevant is beyond me. I uphold the objection to it.
In paragraph 223 the respondent addressed the applicant’s operation of a credit card of which he had no knowledge. He does not say what card it was nor of the relevance of the assertion. It seemed to me to be a collateral assault on credit and in those circumstances I am not willing to allow it for it being irrelevant.
Paragraph 224 of his affidavit records an instruction to pursue enquiries with the expert Ms S. Objection is taken to relevance, which I uphold.
In paragraph 228 the respondent refers to his payment of a sum of money to Mr Alfonzetti in this case. The relevance of that in the issues that I have to determine is difficult, if not impossible, to understand. I uphold the objection.
In paragraph 229 the respondent deposed to his being upset and anxious when certain values were returned with which he took issue. His state of upset is neither here nor there and therefore paragraph 229 is irrelevant. Valuation evidence falls to be determined in accordance with the usual principles.
Let me now turn to the affidavit of Mr Enmore filed 9 February of this year.
Affidavit of Mr Enmore made 9 February 2021
In paragraph 11 the respondent deposed to hidden assets asserted by Mr T. Objection is taken on the basis that the document to which the respondent refers speaks for itself and the reference to hidden assets is hearsay. I agree. I uphold the objection.
In paragraph 18 commencing in the second sentence the respondent spoke of his difficulty in understanding certain accusations and conclusions of impropriety. To my mind the objection to that evidence is well made, it being either a submission or it is irrelevant or it is an opinion. In those circumstances, I uphold the objection to the second sentence and following of paragraph 18.
In paragraph 25 the respondent deposed to his being offended by Mr T’s conclusions. The respondent’s state of offence is not evidence in this case and I uphold the objection as to relevance of paragraph 25.
In paragraph 27 objection is taken to the whole of the paragraph on the basis that it is either irrelevant or it represents a submission. I agree on both grounds and uphold the objection thereto.
In paragraph 29 the respondent deposed to being upset by certain conclusions which he contended were untrue. That is either argumentative debate and not a fact in issue or it is irrelevant or it is traversing matters beyond the witness’s expertise and I disallow paragraph 29.
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 16 February 2021.
Associate:
Date: 19 February 2021
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