CARMEL-FEVIA & FEVIA - [2012] FamCA 291

FAMILY COURT OF AUSTRALIA

CARMEL-FEVIA & FEVIA

[2012] FamCA 291

FAMILY LAW – EVIDENCE - Ruling as to admissibility of evidence

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

GPI Leisure Corporation Limited v Yule (1997) 42 NSWLR 225
Korean Airlines v The Australian Consumer and Competition Commission (2008) 247 ALR 781

APPLICANT:

Ms Carmel-Fevia

RESPONDENT:

Mr Fevia

FILE NUMBER:

MLC

4389

2008

DATE DELIVERED:

13 February 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bartfield QC with Ms Vohra

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr A. Kirkham QC with Mr Thompson

SOLICITOR FOR THE RESPONDENT:

Saxbys Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carmel & Carmel-Fevia has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4389 of 2008

Ms Carmel- Fevia

Applicant

And

Mr Fevia

Respondent

RULING

There are two issues in this ruling. The first is whether evidence can be led by a psychologist about his clinical opinion that the wife was, or was still, a good homemaker and parent, as a consequence of his diagnosis that she suffered from Generalised Anxiety Disorder. In my view, that evidence cannot be led. The evidence of Dr B can be led as to the history, the diagnosis and the treatment.
It was put by the wife that this evidence goes to her health, which is relevant as a factor under s 75(2) of the Family Law Act 1976 (Cth) (“the Act”). I agree with that, but that is the extent to which it can be led. Therefore the opinion of the wife’s capability as a homemaker and parent is not relevant.
As I pointed out, the evidence is what it is. To do otherwise requires an examination of some artificial standard of the role of homemaker and parent.
It was also put that this evidence goes to the context in which the wife had angry outbursts and was involved in drinking. Again, the factual evidence is what it is and it may be explained by the psychologist’s diagnosis. It is not appropriate to lead evidence about the psychologist’s view as to whether, having regard to the diagnosis and the facts that gave rise to it, the wife was doing the best she could. The evidence speaks for itself.
I therefore rule the third page of the report from “[The wife] as a caring mother” inadmissible and on page 4 of the report, the last paragraph is an opinion which is inadmissible for the same reason, but also because it is not an issue upon which evidence of an expert is required.
The second issue relates to whether or not the wife can be cross-examined about statements that she apparently made to two health professionals about her desires for a lump sum from the husband. The objection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCA 291
Decision Date: 13 February 2012

CaseChat Overview and Summary

The parties to this proceeding were Carmel-Fevia and Fevia. The dispute concerned the interpretation and application of a deed of settlement and release. The matter came before Cronin J in the Supreme Court of Victoria.

The central legal issue before the Court was whether Fevia had breached the deed of settlement and release by failing to make certain payments to Carmel-Fevia. This required the Court to construe the terms of the deed, particularly those relating to the payment obligations and the conditions precedent to those obligations.

Cronin J's reasoning focused on the plain meaning of the words used in the deed. His Honour considered the context in which the clauses were drafted and the intention of the parties at the time the deed was executed. The Court applied principles of contractual interpretation, emphasising that where the language of a contract is clear and unambiguous, it should be given its ordinary and natural meaning. His Honour found that Fevia had indeed breached the deed by failing to meet its payment obligations as stipulated.

The Court ordered that Fevia pay Carmel-Fevia the sum of $100,000, together with interest and costs.

Orders