Benedict & Peake

Case [2013] FCCA 332

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENEDICT & PEAKE [2013] FCCA 332
Catchwords:
FAMILY LAW – Practice and procedure – Elias principle – admissibility of evidence – whether evidence of the Applicant that is contrary to her prior assertions to Centrelink and the Australian Taxation Office should be excluded – evidence admitted.

Legislation:  
Family Law Act 1975, ss.4AA , 44(5), 90RD, 90SM

Evidence Act 1995 (Cth), ss.135, 136, 140
Elias and Elias (1997) FLC 90-267
Tinker v Tinker (1970) 2 WLR 331
Gascoigne v Gascoigne (1918) 1 KB 223
Jordan & Jordan (1997) FLC 92-736
Crandall & Crandall [2009] FamCAFC 120
H v H [2002] FMCAfam 381
Gissing & Sheffield [2012] FMCAfam 1111
Dandridge & Barron [2012] FMCA fam 141
Christofis & Zorbas [2011] FMCAfam 571
Cestaro (23 December 1994, unreported, cited in Jordan)
Dawes (1990) FLC 92-108
Jools and McConnell (unreported, S7891 of 1985, Ellis J, 14 December 1990)
Rice v Asplund (1979) FCL 90-725
Briginshaw v Briginshaw (1938) 60 CLR 336
Brady & Harris [2012] FamCA 420
Trustee of the property of Sandor (Bankrupt) v Ramirez S147/1999 [2000] HCA TRANS 114 (17 March 2000)
O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 257
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Applicant: MS BENEDICT
Respondent: MR PEAKE
File Number: PAC 736 of 2011
Judgment of: Judge Harman
Hearing date: 2 May 2013
Date of Last Submission: 2 May 2013
Delivered at: Parramatta
Delivered on: 23 May 2013

REPRESENTATION

Counsel for the Applicant: Mr Alexander
Solicitors for the Applicant: Autore & Associates
Counsel for the Respondent: Mr Frakes
Solicitors for the Respondent: Watts McCray

ORDERS

  1. I decline to exclude, on the basis of “Elias principle” (as asserted), the evidence of the Applicant.

  2. I decline to restrain the Applicant from leading or presenting evidence contrary to or at variance with evidence she has previously submitted, by way of declaration or otherwise, to Centrelink and/ or the Australian Taxation Office.

  3. I confirm the further hearing dates for these proceedings to continue with and determine the Application for declaration pursuant to section 90RD and namely 17 and 18 June 2013.

IT IS NOTED that publication of this judgment under the pseudonym Benedict & Peake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 736 of 2011

MS BENEDICT

Applicant

And

MR PEAKE

Respondent

REASONS FOR JUDGMENT

  1. These proceedings are commenced by an Application filed on 21 February 2011 by Ms Benedict, hereinafter referred to as the Applicant.

  2. On 25 July 2011 a Response was filed by the Respondent, Mr Peake.

  3. The Application of Ms Benedict seeks a declaration, pursuant to Section 90RD, as to the existence of a de facto relationship commencing September 1992 and concluding 18 February 2010. Consequential orders for property adjustment pursuant to Section 90SM are then sought with respect to certain property held by the parties or either of them.

  4. By his Response filed 25 July 2011,…

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Details
AGLC
BENEDICT & PEAKE [2013] FCCA 332
Case
[2013] FCCA 332
Decision Date

CaseChat Overview and Summary

In the matter of *Benedict & Peake*, heard before Judge Harman, the applicant sought to exclude evidence and restrain the applicant from presenting evidence that varied from previous submissions made to Centrelink and the Australian Taxation Office. The dispute concerned the admissibility of evidence in proceedings related to an application for a declaration pursuant to section 90RD of the relevant legislation.

The court was required to determine two primary legal issues. Firstly, whether the evidence of the applicant should be excluded based on the "Elias principle," as asserted by the respondent. Secondly, whether the applicant should be restrained from leading or presenting evidence that contradicted or differed from evidence previously submitted to Centrelink and/or the Australian Taxation Office.

Judge Harman declined to exclude the applicant's evidence on the basis of the "Elias principle," finding it inapplicable or not sufficiently established in this context. Furthermore, the court declined to restrain the applicant from presenting evidence that might vary from her prior declarations to government agencies. The court reasoned that such a restraint would unduly fetter the applicant's ability to present her case fully and fairly. The proceedings were confirmed to continue for a further hearing on 17 and 18 June 2013 to determine the application for a declaration pursuant to section 90RD.

Orders

Orders of the court

1.

I decline to exclude, on the basis of “Elias principle” (as asserted), the evidence of the Applicant.

2.

I decline to restrain the Applicant from leading or presenting evidence contrary to or at variance with evidence she has previously submitted, by way of declaration or otherwise, to Centrelink and/ or the Australian Taxation Office.

3.

I confirm the further hearing dates for these proceedings to continue with and determine the Application for declaration pursuant to section 90RD and namely 17 and 18 June 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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