Danton & Brockett

[2022] FedCFamC1F 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Danton & Brockett [2022] FedCFamC1F 392

File number(s):	SYC 4201 of 2020
Judgment of:	SCHONELL J
Date of judgment:	26 May 2022
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother’s counsel objected to the tender of a document on the basis of s 131(1)(a) of the Evidence Act 1995 (Cth) (“the Evidence Act”) – Where there had been no objection to the paragraph in the father’s affidavit containing reference to the document objected to – Where the mother had been cross-examined and no objection had been raised to the cross-examination – Where the Court admitted the evidence because it fell within the rubric of the exceptions in s 131(2)(b), (c) and (e) of the Evidence Act.
Legislation:	Evidence Act 1995 (Cth) s 131
Division:	Division 1 First Instance
Number of paragraphs:	10
Date of hearing:	26 May 2022
Place:	Sydney
Counsel for the Applicant:	Mr Dura
Solicitor for the Applicant:	SMB Law
Counsel for the Respondent:	Mr Blackah
Solicitor for the Respondent:	Greysilver Law
Counsel for the Independent Children's Lawyer:	Mr Longworth
Solicitor for the Independent Children's Lawyer:	Gordon & Barry Lawyers Pty Ltd

ORDERS

SYC 4201 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DANTON Applicant
AND:	MS BROCKETT Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	26 MAY 2022

THE COURT ORDERS THAT:

1.The letter dated 30 January 2019 from the respondent mother’s then solicitor to the father, attaching a parenting plan, is admitted into evidence and marked Exhibit 18 in the substantive proceedings.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

1. An objection was raised by counsel for the respondent mother (“the mother”) to the tender of a document that became Exhibit 18 in the proceedings, being a copy of a letter dated 30 January 2019 from the mother’s then solicitor to the applicant father (“the father”), who was at that stage self-represented, and attaches to it a copy of a document described as a ‘parenting plan’.

2. The document which became Exhibit 18 was objected to on the basis of that set out in s 131(1)(a) of the Evidence Act 1995 (Cth) (“the Evidence Act”).

3. The document that forms part of Exhibit 18 is referred to in the father’s affidavit filed 22 April 2022, which records as follows:

   56.On 30 January 2019, I received an email from the mother’s solicitor attaching a parenting plan proposed by the mother. The proposed parenting plan sought to impose restrictions on contact between [X] and [Y] such that they would never have seen each other, at least until [Y] was an adult. …

   The paragraph goes on to annex to it a copy of the document which became Exhibit 18.

4. At the commencement of the trial, counsel for the mother identified objections to the father’s affidavit. No objection was taken to paragraph 56.

5. The mother in her affidavit at paragraph 138 refers to a letter from her then solicitor that responds to and identifies the basis upon which she proposed the parenting plan. The mother was cross-examined on the content of the parenting plan and taken to specific parts of it. At no time was there any objection taken to the cross-examination, which forms part of paragraph 56 of the father’s affidavit, or to the document which ultimately came into evidence.

6. The mother admitted in cross-examination that the parenting plan contained a provision, which is identified at paragraph 1.3 of the parenting plan.

7. The Evidence Act provides that s 131(1)(a) of the Evidence Act will not apply in certain circumstances provided in sub-section (2).

8. Section 131(2)(b) provides that the earlier provision will not apply if the substance of the evidence has been disclosed with the express or implied consent of all of the persons in dispute.

9. Section 131(2)(c) provides that if the substance of the evidence has been partially 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, and s 131(2)(e) provides that if the evidence tends to contradict or to qualify evidence that has already been admitted into evidence about the course of an attempt to settle the dispute.

10. In my view, the failure to object to the admission of paragraph 56 and the failure to object to the cross-examination as well as the evidence of the mother in her own affidavit brings the matter fully within the rubric of the exceptions of s 131(2)(b), (c) and (e), and accordingly for those reasons I admitted the documents.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       2 June 2022