CARMEL-FEVIA & FEVIA
[2012] FamCA 291
•13 February 2012
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 | of | 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 was made that the evidence is inadmissible because it infringes s 131 of the Evidence Act 1995 (Cth). Section 131, so far as it is relevant, says that evidence is not to be adduced to the communication that is made between persons in a dispute or between one or more persons in dispute and a third party in connection with an attempt to negotiate a settlement of the dispute.
Section 131(1) does not apply under a number of circumstances, one of which is that the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced.
The husband’s position is that it is not a communication in connection with an attempt to negotiate a settlement. It seems the wife was, at the relevant time, a party to a financial agreement which was later ruled not binding, and in the course of those discussions with the relevant health professionals, she was complaining about the husband’s willingness to provide her with something other than that which she was entitled to under the financial agreement.
There were no negotiations going on between lawyers, but there were negotiations going on between members of the respective families. The wife’s position is that the whole purpose of the legislation is to ensure that judges do not find out about what the parties were negotiating about.
With those bare and simple facts in mind, this was a communication with a professional with whom the wife had a confidential relationship. The lack of objection by the wife’s solicitors to the release of that information under subpoena processes does not overcome the privilege issue. The negotiation does not necessarily have to be for the settlement of the dispute before me. It can be for anything associated with it, including for example, the financial agreement.
It can be and should be for all negotiations between the parties. See for example, Korean Airlines v The Australian Consumer and Competition Commission (2008) 247 ALR 781 and also GPI Leisure Corporation Limited v Yule (1997) 42 NSWLR 225.
What there must be, however, is a negotiation somewhere associated with the statement relating to the evidence. In this case, I am satisfied that there was. The negotiation must be about a relief or an order that might be given by a court. That relief does not need to be immediately available because the proceedings may not have even been issued. However, there must be some form of relief or order contemplated as part of the discussion. The evidence shows that that occurred here.
To the extent that s 131(2)(c) might be said to be relevant, it requires the evidence to be necessary to enable a proper understanding of the other evidence that has been adduced. I do not accept that the evidence of what the wife told her psychologist has any relevance to the issue of her entitlement, other than as to her credit. I could not be satisfied that the evidence issue justifies the admission, on the basis of it being necessary to enable the understanding of the wife’s evidence about her future needs.
Accordingly I rule in respect of the second issue, that the husband cannot cross-examine the wife about the statements that she made to the two relevant health professionals.
I certify that the preceding Fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 February 2012.
Associate:
Date: 17 April 2012
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