DON & MCGLENNAN

[2011] FamCA 215

FAMILY COURT OF AUSTRALIA

DON & MCGLENNAN [2011] FamCA 215

FAMILY LAW - EVIDENCE – admissibility – where the father raises objections to various parts of documentary evidence on the grounds that it is opinion evidence and is irrelevant – where section 69ZT(3) found not to apply – where the Court has permitted and given weight to aspects of evidence as it sees fit in applying 69ZT(2) – orders made accordingly.
FAMILY LAW - PRACTICE AND PROCEDURE – whether the mother can give oral evidence to supplement deficient affidavit material – orders that the mother be permitted to give oral evidence noting that an issue of costs may arise.

Family Law Act 1975 (Cth) s 69ZT

APPLICANT: Ms Don

RESPONDENT: Mr McGlennan

INDEPENDENT CHILDREN’S LAWYER: Ms Elliott

FILE NUMBER: DNC 148 of 2009

DATE DELIVERED: 22 March 2011

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 22 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McLaren

SOLICITOR FOR THE APPLICANT: Asha McLaren

COUNSEL FOR THE RESPONDENT: Mr O'Donnell

SOLICITOR FOR THE RESPONDENT: Halfpennys

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Diane Elliott

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Elliotts, Barrister & Solicitor

Orders

1. The Court rules that the mother can give that evidence and that the Court will continue to deal with all of the contravention applications referred to in the material filed by the mother on 25 November 2010.

IT IS NOTED that publication of this judgment under the pseudonym Don & McGlennan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 148 of 2009

Ms Don

Applicant

And

Mr McGlennan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. Objection has been raised to paragraphs 3, 4 and parts of paragraphs 6 and 7 of the mother's affidavit filed on 25 November 2010 primarily in relation to paragraphs 3 and 4.  The issue is relevance, and in relation to paragraphs 6 and 7, those parts of the affidavit which relate to the expression of an opinion by the mother and dealing with her feelings in relation to the matter. 

2. The Court drew counsel's attention to the provisions of section 69ZT of the Family Law Act1975 (Cth) which specifically directs that in child-related proceedings the Court not apply certain provisions of the Evidence Act 1995 (Cth). Some weight has therefore been put on the argument that the expression of opinions by the mother should be allowed.

3. The Court is required to apply section 69ZT, save and except in the circumstances of section 69ZT, subsection (3), which requires the Court to be satisfied that the circumstances are exceptional and that other criteria set out in section 69ZT(3)(b) have been met.

4. This is an application by the mother claiming that the father has not complied with orders of this Court. Whilst some of the factual material is unusual, it is not an exceptional case, and therefore the provisions of section 69ZT(3) do not apply.

5. The conditions of section 69ZT(2) do apply and the Court can give such weight, if any, as it thinks fit, to the evidence admitted as a consequence of the provisions.

6. I do not intend to admit the material in paragraph 3 in evidence as I am not able to accept that the matter contained therein is relevant to these proceedings.  It would only cause unnecessary delay if the material was admitted and needed to be the subject of cross-examination and evidence in reply. 

7. In relation to paragraph 4, there is some limited relevance to the statements alleged to have been made by the father as set out in that paragraph.  I will not delete that paragraph. 

8. In relation to the opinions expressed in paragraphs 6 and 7, to which objection has been taken, I treat those as the mother's feelings concerning the matter. It will be evidence of her attitude, but clearly not evidence of any factual matter, rather her belief or feeling. I do so on the basis that it can be treated as an opinion which is allowed pursuant to the provisions of section 69ZT(1), but will indicate that, as such, an opinion of a person involved in this sort of litigation and in these circumstances is likely to carry very little weight, if any, when I have heard all of the reliable evidence in the matter.

9. It is necessary to make a ruling on an issue raised by the Court in relation to the application filed by the mother in relation to the contraventions.  The contravention application filed on 25 November has annexed to it a document which lists the statement of the allegations on specific dates.  There are nine of those, the eighth one concluding on the second page and the ninth one being on the second page.

10. I raised with counsel for the mother this morning the fact that the affidavits filed by the mother in support of the application in relation to contraventions filed on 25 November and 29 November 2010 do not contain any particulars of the allegation in paragraph 9 of the contravention.  The mother's counsel has taken instructions.  The mother now seeks leave to give oral evidence in Court to substantiate the allegation of the contravention on 20 November 2010.

11. The counsel for the father objects to that step being undertaken.  The Independent Children's Lawyer’s counsel does not take any position in relation to the matter. 

12. The simple statement of the allegation in paragraph 9 of the contravention says that:

    “On 29 November 2010 at 10 at the [S] Shopping Centre, the father unreasonably refused to allow the mother to spend time with [the child M], thereby frustrating the Court orders.”

13. That is the only information available to the Court in relation to that date, save and except that the father, in his affidavit filed on 21 March 2011, in paragraph 17 deals with the events of Saturday, 20 November 2010, no doubt in response to the fact that it was a date referred to in the contravention application rather than in the affidavit of the mother. 

14. The father's counsel now claims that the father will be unfairly prejudiced if the mother is allowed to give oral evidence in relation to that occasion when he is not in a position at this stage to know the mother's evidence before the hearing begins.

15. I take into account that the father has already set out in his affidavit his version of the events of 20 November 2010, and bear in mind the issue of costs may well arise as one of the factors to be taken into account if the mother is unsuccessful in proceeding with the contravention on that date.  Notwithstanding the matter was stood down specifically for the mother's counsel to take instructions about that date, I propose to permit the mother to give brief oral evidence about the events of that day.  She will be subject to cross-examination by counsel for the father.  If he requires a brief adjournment of the matter to take instructions from his client in relation to those matters, that brief period of time will of course be granted to ensure that the father is not unduly prejudiced by the matter proceeding to hearing today.

16. I rule that the mother can give that evidence and that we will continue to deal with all of the contravention applications referred to in the material filed by the mother on 25 November 2010, subject to possible orders for costs in due course. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 March 2011.

Associate: 

Date:  31 March 2011