Browne & Dunn in Family Law

BROWNE & DUNN IN FAMILY LAW

In family law cases each party in the dispute often has very different versions of the same event. These issues can be minor but can be also be very significant issues such as physical or verbal violence, drug use and can extend to financial matters.

In family law matters the evidence of the parties is provided in affidavit form and each party is also subject to cross examination where they are required to give evidence in the witness box by way of questions and propositions being put to them.

The English Case of Browne v Dunn (1894) 6 Reports 67 stands for authority that If in the course of a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless it be otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of his story.

This issue has been raised in the Family Court and in Behn & Ziomek [2019] FamCA 298 Deputy Chief Justice McClelland referred to the earlier case of West v Mead [2003] NSWSC 161 in which Justice Campbell noted at [95] to [99] that the rule in Browne & Dunn did not apply where all parties were on notice of the evidentiary issues, such as by reason of Affidavits having been exchanged prior to the commencement of the hearing. At [98] and [99] His Honour stated;

The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.

Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. However, the submission which Ms Bateman seeks to put on the basis of paragraph 181 of Ms West’s affidavit in chief involves no drawing together of strands of evidence to create some overall theory or inference of fact, but is a submission as to the legal consequence that should be drawn from the facts plainly asserted in paragraph 181. Nothing in the rule in Browne v Dunn prevents her from putting that submission.

Deputy Chief Justice McCelland then referred to the case of SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633 where the High Court upheld the principle in Pruchnik & Pruchnik (No. 2) [2018] FamCAFC 128; (2018) 58 Fam LR 458 at [82], stating that “if the impugned findings [of the trial judge] were not the subject of cross-examination, provided the implications were otherwise plainly in issue there will be no want of procedural fairness”.
Ultimately in cross examination it may not be necessary to put each and every allegation to the witness if they have addressed the allegations in their affidavit evidence filed in the proceedings.

The Full Court in the matter of LC v TC [1998] FamCA 47 held that:

“The rule in Browne v Dunn provides that unless notice has already clearly been given of a cross examiner’s intention to rely upon such matters it is necessary to put to an opponent’s witness in cross examination the nature of the case upon which it is proposed to rely in contradiction of the witness’ evidence. It does not apply where the witness is on notice, that the witness’ version of events is in contest, that notice may come from the pleadings or the other side’s evidence or opening. Here, both parties filed extensive affidavits in the course of the proceedings, each knew what the other’s case was, and what allegations of fact were being made in support of them. Neither party was caught by surprise and in any event the Husband, pursuant to procedural orders of the trial judge, could have filed affidavit material in response to that of the Wife had he chosen so to do. In the circumstances of this case no error can be perceived in his Honour’s approach.

In the case of Terzum & Minas [2010] FamCA 634 Justice Barry stated at [308] that:

I was not greatly assisted by a slavish adherence to the rule in Browne v Dunn.

At [309] Barry went on to state:

Having regard to the contents of the respective affidavits I was prepared to proceed on the basis it was not necessary to put specific allegations to a witness and no adverse inference would be drawn for a failure by Counsel so to do.

In family law proceedings as the evidence of a witness commences by way of affidavits it is very important for the witness to express in as much detail as possible any allegations that have been raised in the case. This therefore means that it is unnecessary to rely upon cross examining the person who raises these allegations unless of course there are issues of credibility to be raised concerning these allegations.

Leigh Finch is a Barrister admitted into the Supreme Court of NSW and regularly appears in the Federal Circuit and Family Court of Australia in family law matters.   Leigh Finch accepts direct access briefs in family law proceedings. Leigh also appears as a defence Barrister in criminal law proceedings having appeared in jury trials. Leigh's practice also encompasses civil matters and human rights proceedings.

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