De Silva and Rogers (No. 2)

[2014] FamCA 1034

FAMILY COURT OF AUSTRALIA

DE SILVA & ROGERS (NO. 2) [2014] FamCA 1034

FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of evidence – whether a transcript of judgment in the District Court is admissible – whether it is relevant to the parenting proceedings – whether these are exceptional circumstances under s 69ZT(3) – evidence is admissible and relevant.

Family Law Act 1975 (Cth) s 69ZT
Evidence Act 1995 (Cth) ss 91, 135, 142

Blan & Faulconer Blan [2014] FamCA 878
Maluka & Maluka [2012] FamCA 373

APPLICANT: Mr De Silva

RESPONDENT: Ms Rogers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 5187 of 2008

DATE DELIVERED: 6 November 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 6 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Friedlander

COUNSEL FOR THE RESPONDENT: Ms Goodchild

SOLICITOR FOR THE RESPONDENT: Matthew Folbigg

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rafton Family Lawyers

Orders

1. The document which is Annexure “N” in the father’s affidavit, the transcript of the judgment of the District Court of New South Wales is admitted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym De Silva & Rogers (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5187 of 2008

Mr De Silva

Applicant

And

Ms Rogers

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these parenting proceedings, a question has arisen in relation to particular evidence which the father seeks to rely on and which the Independent Children’s Lawyer also seeks to have admitted.  The mother objects to the evidence and says that it is irrelevant or says in the alternative that the Evidence Act1995 (NSW) should apply, which would have the effect it is submitted, that the evidence would be excluded by operation of section 91 of the Evidence Act.

2. In the ordinary course under section 69ZT(1) of the Family LawAct 1975 (Cth), certain provisions of the Evidence Act do not apply to child-related proceedings which means that the fact in issue is not required to be proved by evidence in accordance with the Evidence Act.

3. In relation to this particular evidence, the mother seeks to rely upon section 69ZT(3) which provides that a court may decide to apply one or more provisions of the Evidence Act which are otherwise excluded, in circumstances which the Court is satisfied are exceptional and a number of other specific matters set out in this section have been taken into account.

4. The mother contends that these circumstances are exceptional in relation to the particular issue in question and having regard to the matters set out in this section and other matters, the Evidence Act should apply to this evidence and she submits that the effect would be that the evidence would be excluded.

5. The father and the Independent Children’s Lawyer both contend that the evidence…