FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENEDICT & GILL | [2017] FCCA 1437 |
| Catchwords: EVIDENCE – Letter from psychologist tendered in evidence – objection to tender – resolution of objection in interim application – objection grounded on failure to meet Makita principles – letter from psychologist expressly disavows status of expert report – Makita principles not relevant – further objection on basis of privilege – joint privilege – letter from psychologist prima facie inadmissible – contents of letter from psychologist affect rights of child – letter admissible under exception created by s 131(2)(i) Evidence Act1995 (Cth). EVIDENCE – Expert evidence – court is authorised to decide on all of the evidence an ultimate fact in issue – expert evidence is not determinative. |
| Legislation: Evidence Act1995 (Cth), ss.79, 124, 131 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZQ, 69ZT |
| Cases cited: Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King [2011] VSCA 447 Asciak v Australian Secured and Managed Mortgages Pty Ltd (2008) FCA 753 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Farrow Mortgage Services Pty Ltd (in liq) v Webb(1996) 39 NSWLR 601 |
| Applicant: | MR BENEDICT |
| Respondent: | MS GILL |
| File Number: | MLC 3815 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 June 2017 |
| Date of Last Submission: | 14 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 27 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lane |
| Solicitors for the Applicant: | Mitchell Family Law |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Coote Family Lawyers |
ORDERS
The matter be adjourned for Mention on 23 November 2017 at 9.30am in the Federal Circuit Court of Australia at Melbourne.
The matter be fixed for Final Hearing on 9 and 10 April 2018 at 10.00am in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 day/s.
The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court): and
(a)the applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the hearing;
(b)the respondent electronically file and serve any further…
Continue reading BENEDICT & GILL
Sign in free to access the full text
- AGLC
- BENEDICT & GILL [2017] FCCA 1437
- Case
- [2017] FCCA 1437
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including the admissibility of a letter from a psychologist. Objections were raised on the grounds that the letter did not meet the *Makita* principles for expert evidence and that it was protected by joint privilege. The court also had to consider whether the contents of the letter, which prima facie appeared inadmissible, could be admitted under an exception to privilege.
Judge A Kelly reasoned that the *Makita* principles were not relevant as the psychologist's letter expressly disavowed its status as an expert report. Regarding privilege, the court found that while the letter was prima facie inadmissible due to joint privilege, its contents were crucial to determining the rights of the child. Consequently, the letter was admitted under the exception provided by s 131(2)(i) of the *Evidence Act 1995* (Cth). The court affirmed that it is authorised to decide ultimate facts based on all evidence presented, and expert evidence is not determinative.
The court made interim orders reflecting a Minute of Proposed Orders dated 14 June 2017, which established equal shared parental responsibility and a detailed schedule for the child to live with the Father on a four-weekly cycle during school terms, and with the Mother at all other times. The orders also specified arrangements for school holidays, birthdays, and Christmas, and fixed a final hearing date for April 2018.
Orders
Orders of the court
1.
The matter be adjourned for Mention on 23 November 2017 at 9.30am in the Federal Circuit Court of Australia at Melbourne.
2.
The matter be fixed for Final Hearing on 9 and 10 April 2018 at 10.00am in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 day/s.
3.
The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court): and
(a) the applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the hearing;
(b) the respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the hearing; and
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(c) the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(d) the party has first obtained leave of the court.
4.
Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.
5.
Not later than 4.00pm 2 business days prior to the final hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
CHILDREN
(a) a list of the material relied upon;
(b) a brief chronology listing significant events;
(c) a list of the significant factual issues requiring determination;
(d) a list of contentions with respect to each of the considerations relevant to determining the best interests of the child/ren (s.60CC factors);
(e) a list of contentions relevant to the operation of s.65DAA;
(f) a list of any other contentions relevant to the decision; and
(g) the actual orders sought.
6.
There be interim orders in terms of the Minute of Proposed Orders dated 14 June 2017 (Minute) and further:
(a) the Minute be placed upon the court file and marked Exhibit “A”;
(b) the solicitors for the applicant engross the Minute and deliver a clean, duly certified copy of the same in Microsoft Word format (Copy) by email to the Chambers of Judge A Kelly within 7 days;
associate.judgeakelly@federalcircuitcourt.gov.au
(c) upon delivery of the Copy to the court, the within orders be extracted and the Copy be attached thereto.
AND THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012 (Cth).
EXHIBIT A
Until further order:
1.
The matter be listed for a trial on 9 and 10 April 2018.
2.
The matter be listed for mention on 23 November 2017.
3.
The parties, their respective partners and the child X born (omitted) 2011 attend upon Dr B for the purposes of the preparation of a Family Report on 3 October 2017 with the costs of such report to be borne equally between the parties.
4.
The parties have equal shared parental responsibility for X.
5.
The child live with the Father on a 4-weekly cycle during school term as follows:
(a) week 1: from 10.00am Sunday to the commencement of school on Wednesday to be operative with effect 10.00am Sunday 18 June 2017;
(b) week 2: from 10.00am Sunday until the commencement of school on Thursday;
(c) week 3: from 10.00am Sunday until the commencement of school on Wednesday; and
(d) week 4: from 10.00am Saturday until the beginning of school on Wednesday.
6.
The child live with the Mother during school term at all other times.
7.
That changeover occur at the child’s school on all school days and at the Mother’s home on non-school days.
8.
During school holidays the child spend time with the parents for half of each school holiday period as follows:
(a) in even-numbered years: With the Father for the first half and the Mother for the second half; and
(b) in odd-numbered years: with the Mother for the first half and the Father for the second half.
9.
That the child spend time with each of the parties on their birthdays, the child’s birthday, her sibling’s birthday at times as agreed between the parties.
10.
That the child spend time with the Father from 10.00am to 5.00pm on Father’s Day and with the Mother from 10.00am to 5.00pm on Mother’s Day.
11.
That the child spend time with the parties at Christmas as follows:
(a) with the Father:
(i) from 12.00pm Christmas Day until 12.00pm Boxing Day in 2017 and alternate years thereafter; and
(ii) from 12.00pm Christmas Eve until 12.00pm Christmas Day in 2018 and alternate years thereafter;
(b) with the Mother:
(i) from 12.00pm Christmas Eve until 12.00pm Christmas Day in 2017 and alternate years thereafter; and
(ii) from 12.00pm Christmas Day until 12.00pm Boxing Day in 2018 and alternate years thereafter.
12.
Certify for Counsel.
13.
All interim applications be otherwise dismissed.
14.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are attached and are included in these Orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.