BENWORTH & BENWORTH

[2010] FamCA 1101

FAMILY COURT OF AUSTRALIA

BENWORTH & BENWORTH [2010] FamCA 1101

FAMILY LAW – PROCEDURAL – application for oral evidence by overseas witness by telephone link

Jones and Dunkel (1958-1959) 101 CLR 298

APPLICANT: Mr Benworth

RESPONDENT: Ms Benworth

FILE NUMBER: SYC 8541 of 2007

DATE DELIVERED: 1 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 1 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: L Judge

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: R Schonell SC

SOLICITOR FOR THE RESPONDENT:

Orders

1. That by consent Ms W may give oral evidence by telephone link.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC8541 of 2007

MR BENWORTH

Applicant

And

MS BENWORTH

Respondent

REASONS FOR JUDGMENT

1. I will allow the further affidavit of Dr C sworn today to be filed in court and read as part of the mother’s case.  I do so for the following reasons.

2. Whilst there certainly is an issue of credit, equally, if not more importantly, is one of the matters which I must have regard to, and it is certainly relevant in this case, pursuant to s 60CC(3), and that is the parental attitude of the parties as well as the nature and extent of communication in relation to matters affecting the child.  Quite clearly, the proposed affidavit, having regard to the cross-examination that was carried out by senior counsel for the mother, makes this material relevant.

3. In addition, the matters that were put to the father and his wife in cross-examination appeared to arise from the clinical notes which Dr C provided implicitly in response to a subpoena.  Consequently, they are matters which would not take the father by surprise.  Indeed, without the evidence of Dr C, potentially there could be a submission based on Jones & Dunkel.[1]  Counsel for the father cogently put all matters that - in opposition to this affidavit being able to be relied upon;  however, the question of possible prejudice to her client was not a matter that was relied upon, and quite properly so.

   [1] Jones v Dunkel (1958-1959) 101 CLR 298

4. Consequently, I propose to allow the affidavit to be filed and relied upon.  Should there be a matter arising out of its content upon which counsel for the father needs to obtain instructions, then I would consider any application for such short adjournment as may be necessary for that purpose.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 1 December 2010.

Associate:

Date: