Bernet and Bernet (No 2)

FAMILY COURT OF AUSTRALIA

BERNET & BERNET (NO 2) [2017] FamCA 598

FAMILY LAW – EVIDENCE – RULING – expert evidence – whether opinion evidence can be given by an experienced farmer.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
HG v The Queen (1997) 197 CLR 414
Steinbrenner and Steinbrenner [2008] FamCAFC 192

APPLICANT: Ms Bernet

RESPONDENT: Mr Bernet

FILE NUMBER: MLC 6860 of 2015

DATE DELIVERED: 15 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7, 8, 9, 10, 14 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Panna QC with Mr Meehan

SOLICITOR FOR THE APPLICANT: McKean Park Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kirkham QC with Dr Ingleby

SOLICITOR FOR THE RESPONDENT: Saxbys Lawyers

Orders

1. Paragraph [48] of the husband’s affidavit filed 28 July 2017 is ruled admissible.

2. Paragraphs [82 and [83] of the same affidavit are ruled inadmissible.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bernet & Bernet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6860  of 2015

Ms Bernet

Applicant

And

Mr Bernet

Respondent

REASONS FOR RULING

1. Objection is raised by the wife to two pieces of evidence relied upon by the husband in this property proceeding.  The first piece of evidence commences at [76] of the husband’s trial affidavit in which he deposes to using farm plant and equipment owned by his parents.  At [78], the husband asserted that the free use of this machinery was of significant benefit in the parties’ farming operations enabling greater profit than if they had been required to pay for it. 

2. At [79] the husband said that when equipment went to his parents’ farms it was serviced and repaired by his parents’ entities.  Then, there were gifts of seed and so forth given by his parents including the use of his father’s labour force.

3. The wife’s concessions were that she and the husband worked on the father’s property without remuneration and that plant and equipment sent to the father’s property did not come back.  In relation to the parents’ plant and equipment, she conceded that the husband’s father was generous about the use of machinery as well as allowing them the use of his employees but she did not know about such things as fertilizer and chemicals. 

4. The synopsis just given, indicates there is a modest dispute about the assistance the husband and wife received.  The real controversy…