DELAHEY & GARRA-MARSH - [2014] FCCA 499

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELAHEY & GARRA-MARSH

[2014] FCCA 499

Catchwords:
FAMILY LAW – Property – binding financial agreement – application to set aside binding financial agreement.

FAMILY LAW – Maintenance – spousal maintenance – binding financial agreement relating to spousal maintenance – application to set aside binding financial agreement.

CHILD SUPPORT – Binding child support agreement – application to set aside binding child support agreement.

EVIDENCE – Objection to evidence – application to set aside applicant’s affidavits – inadmissible – prolix – irrelevant – scandalous – argumentative.

WORDS & PHRASES – “prolix” – “scandalous” – “argumentative” – “embarrassing”.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.80C, 136

Evidence Act 1995 (Cth), ss.56, 131

Family Law Act 1975 (Cth), ss.90C, 90K

Federal Circuit Court Rules 2001 rr.15.25, 15.28, 15.29

Garra-Marsh & Garra-Marsh (No.2) [2012] FMCAfam 1135
Garra-Marsh & Garra-Marsh (No.3) [2012] FMCAfam 1144
Sheehan & Sheehan (1983) 9 Fam LR 115; FLC 91-352

Applicant:

MS DELAHEY

Respondent:

MR GARRA-MARSH

File Number:

SYC 1541 of 2009

Judgment of:

Judge Scarlett

Hearing date:

13 March 2014

Date of Last Submission:

14 March 2014

Delivered at:

Sydney

Delivered on:

14 March 2014

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Levy

Solicitors for the Respondent:

Abrams Turner Whelan Family Lawyers

ORDERS

The affidavit of the Applicant affirmed on 17 February 2012 is inadmissible save and except for:
(a)the first three paragraphs on the third page of the affidavit; and
(b)the paragraph numbered 56 on the forty-first page of the affidavit, commencing with the words “At no point” and ending with the words “remain undisclosed” on the second line of the forty-second page.
Pages 1 to 15 inclusive of the affidavit of the Applicant affirmed on 19 April 2012 are inadmissible.
Pages 19 to 25 inclusive of the above affidavit are inadmissible save and except for the final two paragraphs on page 25.
Pages 33 to 35 of the above affidavit are inadmissible.
The affidavit of the Applicant of 1 May 2012 is prolix and embarrassing and is struck out.
The affidavit of the Applicant of 9 May 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 18 May 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 19 June 2012 is prolix and embarrassing and is struck out.
The affidavit of the Applicant of 11 July 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 23 July 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 2 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 7 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 20 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 21 August 2012 is inadmissible in its entirety.
The affidavit of the Applicant of 4 September 2012 is prolix and embarrassing and is struck out.
The affidavit of the Applicant of 5 October 2012 is inadmissible in its…

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.

Continue reading DELAHEY & GARRA-MARSH

Details

AGLC: DELAHEY & GARRA-MARSH [2014] FCCA 499
Case: [2014] FCCA 499
Decision Date: 14 March 2014

CaseChat Overview and Summary

In the matter of Delahey & Garra-Marsh, Judge Scarlett considered applications to set aside a binding financial agreement and a binding child support agreement. The proceedings also involved objections to the admissibility of numerous affidavits filed by the applicant, on grounds including prolixity, irrelevance, scandalous content, and being argumentative.

The court was required to determine the admissibility of various affidavits and specific paragraphs within them, as well as a financial statement. The core legal issues revolved around whether the content of these evidentiary materials met the standards for admissibility in family law proceedings, particularly concerning the grounds for striking out or deeming evidence inadmissible due to its prolix, scandalous, or argumentative nature.

The court applied principles relating to the admissibility of evidence and the grounds for striking out affidavits. It found that many of the applicant's affidavits and specific paragraphs were prolix, embarrassing, scandalous, or otherwise inadmissible. Consequently, the court made extensive orders striking out or deeming inadmissible large portions of the applicant's evidence, including multiple affidavits and a financial statement, while permitting limited exceptions for specific paragraphs deemed relevant and admissible.

Orders

Orders of the court

The affidavit of the Applicant affirmed on 17 February 2012 is inadmissible save and except for:

(a) the first three paragraphs on the third page of the affidavit; and

(b) the paragraph numbered 56 on the forty-first page of the affidavit, commencing with the words “At no point” and ending with the words “remain undisclosed” on the second line of the forty-second page.

Pages 1 to 15 inclusive of the affidavit of the Applicant affirmed on 19 April 2012 are inadmissible.

Pages 19 to 25 inclusive of the above affidavit are inadmissible save and except for the final two paragraphs on page 25.

Pages 33 to 35 of the above affidavit are inadmissible.

The affidavit of the Applicant of 1 May 2012 is prolix and embarrassing and is struck out.

The affidavit of the Applicant of 9 May 2012 is inadmissible in its entirety.

The affidavit of the Applicant of 18 May 2012 is inadmissible in its entirety.

The affidavit of the Applicant of 19 June 2012 is prolix and embarrassing and is struck out.

The affidavit of the Applicant of 11 July 2012 is inadmissible in its entirety.

10.

The affidavit of the Applicant of 23 July 2012 is inadmissible in its entirety.

11.

The affidavit of the Applicant of 2 August 2012 is inadmissible in its entirety.

12.

The affidavit of the Applicant of 7 August 2012 is inadmissible in its entirety.

13.

The affidavit of the Applicant of 20 August 2012 is inadmissible in its entirety.

14.

The affidavit of the Applicant of 21 August 2012 is inadmissible in its entirety.

15.

The affidavit of the Applicant of 4 September 2012 is prolix and embarrassing and is struck out.

16.

The affidavit of the Applicant of 5 October 2012 is inadmissible in its entirety.

17.

The affidavit of the Applicant of 4 March 2014 is inadmissible as to the following paragraphs:

(a) [51] to [113] inclusive;

(b) [154] to [162] inclusive; and

18.

Paragraphs [114] to [122] and [163] to [174] of the affidavit of the Applicant of 4 March 2014 are scandalous and struck out under Rule 15.29.

19.

The affidavit of the Applicant of 12 March 2014 is inadmissible as to the following paragraphs:

(a) [1] to [23] inclusive; and

(b) [63] to [70] inclusive.

20.

The Financial Statement filed by the Applicant on 12 July 2012 is inadmissible.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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