Woley & Humboldt (No. 3)

[2009] FamCA 344

FAMILY COURT OF AUSTRALIA

WOLEY & HUMBOLDT (NO. 3) [2009] FamCA 344

FAMILY LAW – RULING – Admissibility of hearsay evidence

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Woley

RESPONDENT: Mr Humboldt

FILE NUMBER: MLF 1685 of 2005

DATE DELIVERED: 3 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC with Mr Strum

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Geddes QC with Ms Macmillan

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds

IT IS NOTED that publication of this ruling under the pseudonym Woley & Humboldt is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1685 of 2005

MS WOLEY

Applicant

And

MR HUMBOLDT

Respondent

RULING

1. The application before me relates to an argument about the admissibility of evidence at this stage in relation to an affidavit filed by the wife on 19 December 2008.

2. It is common ground that the evidence is hearsay and counsel for the wife relies on s 63 of the Evidence Act 1995 (Cth). The dilemma with s 63 is that it is governed by s 67 and it is also common ground that although this issue has been on the table for a long time and specifically since the wife filed her affidavit on 19 December 2008, the wife has not given the formal notice not only under the Evidence Act, but also under the Family Law Rules 2004.

3. That is not an insurmountable problem because s 67(4) provides that despite sub-section (1), if notice has not been given, the court may, on the application of a party, direct that one or more of the sub-sections is to apply despite the party's failure to give the notice.  The court then is able under s 67(5) to give a direction as to how the evidence is to be used.

4. The only areas of discretion as to admissibility or otherwise, arise by operation by s 67(4) and the catch-all provision in s 135.  Section 67(4) and s 67 generally provides no specific guidance as to how the discretion is to be exercised. 

5. This is a hotly disputed issue because it affects the question of what is in the pool of assets for division between the parties.

6. In reality, unlike many cases, the exclusion of the evidence is prejudicial to the wife but to include it is potentially prejudicial to the husband.  Both parties therefore have an argument about the question of how the discretion is to be exercised.

7. Section 192 gives some guidance.  It says that if because of this Act a court may give any leave, permission or direction, the leave may be given on such terms as the court thinks fit.  Sub-section (2) reads, "Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to or to shorten the length of the hearing, (b) the extent to which to do so would be unfair to a party or to a witness, (c) the importance of the evidence in relation to which the leave, permission or direction is sought, (d) the nature of the proceeding, (e) the power, if any, of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence."

8. In some respects every one of those five matters applies in this case.  This case may be either lengthened or shortened by the admission or denial of the evidence. 

9. The exclusion of the evidence would be unfair to the wife in one sense and that is that she has been arguing that for many years, not only has the husband had control of his mother's assets, but that the mother was indicating very early in the marriage that she was not capable of managing those affairs.

10. The third consideration is the importance of the evidence in relation to which the leave is sought.  I am not convinced at the moment that the statements by the mother as long ago as 10 or more years is going to affect the ultimate decision.  I may very well prove to be wrong in relation to that when I hear the substantive evidence, but at this stage I am not convinced that the evidence that I am being asked to strike out as hearsay, is of that much importance.

11. The fourth consideration is the nature of the proceeding.  This is a property dispute and the fundamental first question is what is in the pool to be divided.  Ultimately one way or the other, it seems that there is argument that if this property belonging to the trusts and/or the mother is not the property of the husband, it may very well be seen as a financial resource either now or in the future.  To that extent it is unclear to me exactly how this evidence will ultimately affect the outcome.

12. The fifth consideration is the power of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.  One of the arguments at the moment is the question of the competence of the mother to give evidence.  I am not at all comfortable about saying on what I have heard, that the question of her competence or otherwise at the moment, affects the admissibility of the evidence back as far as 10 or more years ago, notwithstanding it is put on the basis that that was her “state of mind”.  Those are all matters that I think can be cured as the evidence unfolds and particularly in relation to issues such as cross-examination of the husband.

13. It is also clear that the mother could have been subpoenaed to give evidence as was certainly foreshadowed last week.  Mr Strum quite correctly points out that they could not call someone who is not competent.  But that is a matter that I cannot determine at this stage and I am not sure that I can determine it even on the basis of the mother's medical records.

14. Ultimately therefore, in the exercise of discretion, I have to decide whether or not all of the issues are matters which unfairly prejudice one party or the other.  It is a balancing act.  At this stage I am not convinced that those matters are overwhelmingly unfair to the wife to be excluded and on that basis I propose therefore to rule the evidence inadmissible on the grounds that it is hearsay.

I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 May 2009