Wolff and Holden
[2014] FamCAFC 74
FAMILY COURT OF AUSTRALIA
| WOLFF & HOLDEN | [2014] FamCAFC 74 |
| FAMILY LAW – APPEAL – PROPERTY – DE FACTO RELATIONSHIP – EVIDENCE – Where the appellant alleged that the trial judge erred by having regard and attaching significance to a document which was not properly in evidence – Where the Full Court found that the trial judge had so erred – Where the Full Court found that the trial judge’s finding as to the date of the document was made in the absence of evidence and his reliance on that finding to conclude an absence of jurisdiction constituted a material error of law – Where the Full Court also found that the provision of a translation of the document to the Court after the closure of oral evidence deprived the appellant of procedural fairness – Matter remitted for rehearing – Costs certificates granted. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 |
| APPELLANT: | Ms Wolff |
| RESPONDENT: | Mr Holden |
| FILE NUMBER: | SYC | 349 | of | 2012 |
| APPEAL NUMBER: | EA | 132 | of | 2012 |
| DATE DELIVERED: | 6 May 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Thackray and Austin JJ |
| HEARING DATE: | 19 March 2014 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court (as it then was) |
| LOWER COURT JUDGMENT DATE: | 13 September 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 924 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Coulton |
| SOLICITOR FOR THE APPELLANT: | Accentro Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Cairns |
| SOLICITOR FOR THE RESPONDENT: | K M Harkness & Co |
Orders made on 19 March 2014
The oral application to adduce further evidence of:
(a)the email from [the respondent’s solicitor] to the Associate to Foster FM dated 20 August 2012; and
(b)the email from [the respondent’s solicitor] to [the appellant’s solicitor] dated 30 May 2013
is allowed by consent.
The application in an appeal to adduce further evidence filed 24 January 2014 be dismissed.
The appeal be allowed.
The orders of Foster FM made on 13 September 2012 be set aside.
The matter be remitted for rehearing by a judge of the Federal Circuit Court.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
That the Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant and the respondent in respect of the costs incurred by the appellant and the respondent in relation to the new trial ordered.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wolff & Holden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 132 of 2012
File Number: SYC 349 of 2012
| Ms Wolff |
Appellant
And
| Mr Holden |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal concerned orders made by the Federal Magistrates Court (as the Federal Circuit Court then was) on 13 September 2012 declaring that the
de facto relationship between the parties ended in January 2006, thereby depriving the Court of jurisdiction to hear the appellant’s claim for relief in the form of property settlement orders under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). The declaration to that effect resulted in dismissal of the appellant’s substantive application.
The appeal was heard and allowed on 19 March 2014. That result became inevitable because of an anomaly in the trial process that caused an irremediable denial of procedural fairness and another material error that vitiated the trial judge’s decision. Those errors were induced by the parties’ failure to conceptualise what evidence was actually before the Court, how it was placed before the Court, and how the evidence was then used.
The appeal therefore succeeded on Ground 5 of the Amended Notice of Appeal. It was unnecessary to deal with the remaining 15 grounds of appeal, which were either abandoned or admittedly concerned argument about erroneous factual findings or the erroneous attribution of weight to the evidence.
Orders allowing the appeal were pronounced ex tempore, with reasons to be delivered later. These are those reasons.
Background
The parties agreed they were formerly in a de facto relationship. The contentious issue was whether the relationship continued beyond January 2006, and more particularly for the question of jurisdiction, whether the relationship continued beyond 1 March 2009. The appellant maintained it did and the respondent asserted it did not.
The hearing before the trial judge was conducted as a threshold inquiry to determine the existence of jurisdiction to entertain the appellant’s substantive application for relief.
Unsurprisingly, the evidence adduced at hearing by the parties was a morass of conflict. Some capably supported the inference of severance of the relationship before 1 March 2009, as the respondent urged, and some capably supported the inference of continuity of the relationship beyond 1 March 2009, as the appellant urged.
The trial judge assimilated the conflicting evidence in the reasons (at [19]-[37]), considered that evidence in the context of the mandatory legislative considerations (at [39]-[55]), and ultimately concluded (at [57]):
Overall the court is not satisfied that the parties, having regard to all the circumstances of their relationship, had a relationship as a couple living together on a genuine domestic basis after January 2006.
Consequent upon that conclusion, the trial judge made the declaration as to the absence of jurisdiction and dismissed the appellant’s substantive application.
Several pieces of evidence were influential in the trial judge’s conclusion about the termination of the parties’ relationship in January 2006, but integral to the conclusion was a letter written by the appellant to the respondent in the Mandarin language (“the letter”). However, there was a factual dispute about both the meaning of the letter and the time at which it was sent.
The manner in which the letter and its translation into the English language were placed before the Court was, because of their ultimate importance to the outcome of the litigation, productive of the errors that now require correction.
The evidence pertinent to the errors
The proceedings were not “child-related proceedings”, either by definition or consent (ss 4(1), 69ZM of the Act), and so the evidence adduced at trial was governed by the provisions of the Evidence Act 1995 (Cth).
At the outset of the hearing, the trial judge identified the affidavit evidence relied upon by the parties. No objections to the evidence were invited by the trial judge and none was volunteered by the parties at that point.
The letter was referred to in the respondent’s affidavit. Annexed to the affidavit (as Annexure H) were both the letter and another document purporting to be its accurate translation into the English language (“the translation”).
At a very early stage of the hearing the respondent alerted the trial judge to the asserted importance of the letter and the translation to the outcome of the proceedings. Such overt reliance upon the documents still did not evoke any objection to its admissibility by the appellant.
The trial judge did later invite the respondent’s objections to the appellant’s affidavit evidence prior to the opening of the appellant’s case, but none was made. Still no objections were invited or made in respect of the respondent’s affidavit evidence at that juncture. Perhaps, as was later implied to the trial judge, the appellant’s counsel intended to make his objections to the respondent’s affidavit evidence between the closure of the appellant’s case and the opening of the respondent’s case.
During her cross-examination the appellant was questioned about the letter and the translation. The appellant admitted authorship of the letter, but asserted she wrote and sent it to the respondent in December 2009 rather than in January 2006. She also said the translation was prepared by the respondent. None of that evidence was contradicted by any other evidence adduced at trial.
After that evidence had been given, but still during the appellant’s
cross-examination, the following exchanges occurred:
[Appellant’s counsel:] Your Honour … I was going to object to the
translation of the document …
[Respondent’s counsel:] I don’t press the translation at this point …
[Trial judge:] … later on the parties can agree to have it
translated by a certified translator.
(Transcript, 10 August 2012, p 22, line 21-29)
The respondent then subsequently tried to tender the letter and the translation, but was met with objection by the appellant because the letter was only a photocopy. The appellant maintained the photocopy of letter was not a faithful reproduction of the original. She alleged the original was dated, but that the date on the photocopy had been “covered”. That evidence had clear implications for any finding about when the letter was written and sent.
Accordingly, the ruling made by the trial judge at that point is recorded as follows:
I will admit into evidence just the document in Chinese.
The parties must therefore have presumed the photocopy of the letter was admitted into evidence, but the translation was not.
Subsequently, the appellant’s counsel informed the Court of the appellant’s belief the date had been deliberately excised from the photocopy of the letter, which belief was confirmed by the appellant when her cross-examination resumed.
That evidence prompted the appellant’s counsel to revive his objection to admissibility, although it remains unclear as to precisely what document the objection was directed, given the decision had been already made to admit the photocopy of the letter into evidence. Relevantly, the following exchanges then ensued:
[Appellant’s counsel:] Your Honour, I object to the tender then on the of the evidence before you [sic].
[Respondent’s counsel:] I withdraw the tender at this stage, your Honour.
…
[Trial judge:] I will mark that document … as MFIA just so we don’t lose track of it.
(Transcript, 10 August, 2012, p 25, line 4-22)
The uncertainty about what then transpired could not be clarified by either counsel at the hearing of the appeal. However, inspection of the document on the Court file bearing the identification “MFIA” reveals it to be only the photocopy of the letter. The translation did not comprise part of the identified document/s. It therefore necessarily follows that the respondent’s counsel must have been purporting to withdraw the tender of, and instead mark only for identification, the photocopy of the letter which the trial judge had already decided to admit into evidence.
Consequently, as circumstances then stood, the status of the letter as evidence was uncertain, but the translation was certainly not admitted into evidence.
The appellant’s counsel then made a call for production of the original letter. The transcript does not reveal that the call was ever answered. The only available inference is that it was not.
Although the foregoing forensic skirmish temporarily diverted the attention of the parties and the Court to other issues, it was the subject of further discussion once the cross-examination of the appellant concluded.
The appellant’s counsel confirmed he objected to the admissibility of the translation (but not apparently the letter) and sought guidance from the trial judge about how the earlier mooted independent translation of the letter might be procured and admitted into evidence. Relevantly, the following exchanges then occurred:
[Trial judge:] It might be that your [appellant’s] instructor during the period of the adjournment can have it translated by a certified translator.
[Respondent’s counsel:] Yes.
[Trial judge:] And then at that stage, it could be tendered [appellant’s counsel], I expect.
[Appellant’s counsel:] Yes, your Honour.
…
[Trial judge:] That’s the best way. Well, you do that [respondent’s counsel].
(Transcript, 10 August 2012, p 62, line 14-27)
The trial then continued with the cross-examination of the respondent and his witnesses, but the respondent was not cross-examined about the letter or his own translation of it.
When the oral evidence was concluded, arrangements were made for the parties to furnish the trial judge with written submissions so that reserved judgment on the “jurisdictional question” could be delivered about a month later on
13 September 2012.
The appellant prepared lengthy submissions dated 17 August 2012.
The respondent prepared more succinct submissions dated 6 September 2012. The respondent’s submissions made reference to “Annexure H to the respondent’s affidavit” and, more significantly, the provision of a translation of it.
That motivated the appellant to prepare pithy submissions in reply, dated
7 September 2012, which included the following observation about the letter and any translation of it:
The Court is no in a position [sic] to make any findings associated with such a letter until there is evidence of a translation as agreed by the parties, or in the absence of such an agreement, upon the Court making a finding that there is a proper translation.
The appellant sought and was granted leave, with the respondent’s consent, to adduce further evidence on the appeal. She tendered two emails dated
20 August 2012. The first was an email by the respondent’s solicitor to the trial judge’s associate attaching an English translation of the letter prepared by an accredited translator (“the accredited translation”). The second was an email by the respondent’s solicitor to the appellant’s solicitor attaching the accredited translation “by way of service”. Therefore, after the hearing concluded, the respondent unilaterally procured the accredited translation and forwarded it directly to the trial judge without first confirming with the appellant her satisfaction with its accuracy. It was simply served upon the appellant afterwards.
It seems abundantly clear the appellant’s counsel was ignorant of the service of the accredited translation upon his instructing solicitor in the weeks preceding his preparation and provision to the trial judge of the submissions in reply concerning the letter and any translation of it.
The reasons later published by the trial judge made no reference to either the uncertainty or the unresolved dispute between the parties about the admissibility in evidence of the letter and the accredited translation. Rather, the reasons imply the reception into evidence of both and the trial judge’s reliance upon the accredited translation.
The errors
The trial judge reasoned in respect of the letter (at [22]-[23]):
22.The respondent asserts that [the appellant] provided to him a letter in January 2006. That letter comprises Exhibit H [sic] to the respondent’s affidavit. There is an issue as to when [the appellant] provided the letter to the respondent; she asserts that it was in December 2009 after a quarrel between them. The letter clearly acknowledges the end of the relationship between [the appellant] and respondent …
23.On balance the court is satisfied that [the appellant] provided this letter to the respondent in January 2006.
Several observations must be made about the recitation of the evidence and the findings made by the trial judge.
Firstly, the findings about the contents and timing of the letter were vitally important to the conclusion about the absence of jurisdiction, because the trial judge was influenced by the letter to find the parties’ relationship ended in January 2006. There was no jurisdiction to entertain the appellant’s application for substantive relief unless their de facto relationship survived beyond
1 March 2009.
Secondly, there was no evidence at all the letter was provided to the respondent by the appellant in January 2006. The respondent did not say so in his affidavit and he was not asked about it in cross-examination. He expressly said the photocopy of the letter he annexed to his affidavit was undated and he abstained from deposing to the time at which it was received by him. The appellant’s cross-examination about the contents of the letter only elicited her insistence that she prepared and sent the letter to the respondent in December 2009 and that the date endorsed on the original of the letter had been excised from the photocopy. Even if the trial judge did not accept her evidence on that issue, there was no evidence at all to affirmatively establish the time at which the letter was furnished to the respondent. If there is no evidence of a crucial fact and if the decision is thereby vitiated, a point of law is indubitably raised (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 147, 149, 156). It was a material error of law to find the letter was sent to the respondent in January 2006 and rely on that finding to conclude an absence of jurisdiction in the proceedings, since there was no evidentiary foundation for it.
Thirdly, the only document conceivably received into evidence as part of Annexure H to the respondent’s affidavit was the letter. Since it was written in the Mandarin language, it was unintelligible to the trial judge without an English translation. There was no doubt the respondent’s translation of the letter, which had also been annexed to his affidavit, was not received in evidence in the face of the appellant’s objection to its admissibility.
To conclude the letter “clearly acknowledges the end of the relationship” the trial judge must have adverted to and relied upon the accredited translation forwarded to the Court by the respondent on 20 August 2012. Leaving to one side the procedural irregularity that the document was not formally received by the Court and marked as an exhibit in the proceedings, the appellant was unable to satisfy herself the accredited translation was accurate before it was provided to the trial judge. Even if the accredited translation was proffered to the Court by the respondent pursuant to some perceived loose and informal arrangement, as his counsel contended on appeal, as the appellant’s counsel observed in the submissions in reply to the trial judge, no translation of the letter was expressly agreed between the parties. The trial judge was in no position to independently assess whether the accredited translation was accurate in the absence of agreement between the parties.
Finally, the provision to the Court of the accredited translation after the closure of the oral evidence deprived the appellant of procedural fairness. The accord reached between the trial judge and counsel to avert further factual evaluation of the letter, pending later provision of an accredited translation, curtailed the appellant’s cross-examination on the issue and feasibly led the appellant’s counsel to decide not to re-examine the appellant and/or not to cross-examine the respondent on the issue. The Court was thereby deprived of relevant and probative oral evidence of the parties that would and should have influenced the ultimate finding about what the letter actually said and when it was furnished to the respondent. That denial of procedural fairness so fundamentally flawed the process that the trial judge’s decision cannot stand.
The appeal was therefore allowed, the orders of the trial judge set aside, and the matter remitted to the Federal Circuit Court for further hearing.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray and Austin JJ) delivered on 6 May 2014.
Associate:
Date: 6 May 2014
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