HOW IMPORTANT IS A WITNESS’ PERCEIVED CREDIT AT TRIAL?

When matters proceed to hearing and a Judge has to determine the outcome, it is often the case that a witness’ credit looms large in such a decision.  That is, should the evidence of one of the parties be preferred over another and, if so, how does that impact the overall outcome?

The matter of Cizek & Mihov [2024] FedCFamC1A 151 came before Austin J on appeal from the decision of Cizek & Mihov [2024] FedCFamC2F 584.  Credit was central to the case with the primary judge making a negative finding against the Appellant from the start.  On appeal the Appellant argued that this negative finding against her essentially ‘infected’ the whole judgment/outcome.  The Appellant had sought to establish a de facto relationship and thereafter an adjustment of property interests.  One of the obstacles to establishing that a relationship existed was the Appellant’s inability to commit to a ‘whole’ relationship with the Respondent.  The parties did not live together, the Appellant did not make any contribution to the assets of the Respondent but received very generous financial support from him.  Further, the Appellant conceded in the witness box that she had been receiving Centrelink benefits throughout the relationship and that if she had done so lawfully then that was contrary to her position that a de facto relationship existed.  The Court found that some years into the relationship the Respondent became aware that the Appellant was receiving Centrelink benefits but continued to distribute income to her as part of a tax minimisation scheme, income that presumably the Appellant did not repot to Centrelink.  The ultimate outcome was a finding that no de facto relationship existed and that the Appellant’s application be dismissed, with an Order for costs against her.  Interestingly, it does not appear that either party sought a certificate against self-incrimination prior to giving evidence or that any referral was made.

In Campos & Fossen [2024] FedCFamC2F 922 both parties’ credit was in issue and adverse findings made against both.  There had been previous Family Court parenting proceedings between the Respondent and his former Wife in respect of two young children during which the Applicant provided affidavit evidence supporting the Respondent and denying any family violence.  However, in this current matter she sought to run a Kennon argument notwithstanding that in the Respondent’s prior proceedings she had categorically denied family violence in her affidavit supporting him.  The Applicant had been in receipt of Centrelink benefits throughout the relationship, a fact which she omitted from her affidavit evidence but that was conceded in the witness box.  The Respondent sought to have the application dismissed on the basis that it would not be just and equitable to make any adjustment in favour of the Applicant.  Noting that neither party was a reliable witness, the Court agreed with the Respondent.  Again, interestingly, it does not appear that either party, particularly the Applicant, was referred given the nature of their evidence and no Certificates were sought in advance.

The case of Keadle & Holcombe [2024] FedCFamC2F 808 includes some rather disturbing evidence given by the Husband.  The Wife’s case, in part, was that the Husband had improperly removed funds from the parties’ self-managed superannuation fund (“SMSF”).  The Husband had re-partnered and his new partner, Ms F, appeared to be complicit in the Husband’s conduct.  The Court ultimately found in the Wife’s favour and made a number of observations in respect of the Husband’s evidence being ‘entirely unsatisfactory’.  The Husband’s evidence to even the lay observer would appear completely implausible.  On the his own evidence the Husband had engaged in multiple cash transactions with unknown buyers/sellers, there was no paper trail and he appeared to be suffering severe memory loss when it came to those transactions.  There was no evidence that any of these buyers/sellers even existed.  In addition, Ms F admitted that she had conferred with her solicitor during a break whilst she remained under oath as her cross examination had not concluded.

However, notwithstanding Judge Parker’s findings, at paragraph 143 of the Judgment, that the Husband’s poor conduct involved:

(a) concocting false transactions with respect to the assets of the SMSF;

(b) fabricating invoices;

(c) giving false evidence; and 

(d) colluding with Ms F in order to deprive the Wife of her entitlements in these proceedings.

… it would seem that 

• The husband was not referred;
• There was no mention of any reprimand for a solicitor speaking to a witness about matters during a break while that witness remained under oath.