ENGLAND & HARRISSON - [2020] FamCA 1083

FAMILY COURT OF AUSTRALIA

ENGLAND & HARRISSON

[2020] FamCA 1083

FAMILY LAW – PRACTICE AND PROCEDURE – PARENTING – evidence – whether a third party affidavit be struck out pursuant to section 135 of the Evidence Act 1995 – probative value of affidavit evidence – evidence sought to be led in relation to historical allegations of family violence – probative value found to be low – affidavit struck out and affidavit not read into evidence.

Evidence Act 1995 ss. 97, 135
Family Law Act 1975 ss. 60CC, 69ZT, Division 12A of Part VII

Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd[2018] FCA 264

APPLICANT:

Ms England

RESPONDENT:

Ms Harrisson

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5095

2020

DATE DELIVERED:

18 December 2020

PLACE DELIVERED:

Sydney (via videoconference)

PLACE HEARD:

Sydney (via videoconference)

JUDGMENT OF:

Altobelli J

HEARING DATE:

9 December 2020

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Ms Burke

SOLICITOR FOR THE APPLICANT:

Holmes Donnelly & Co

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Tiyce & Lawyers

ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The affidavit of Ms B filed 27 October 2020 be and is hereby struck out and removed from the Court record.
The matter be listed for Final Hearing commencing on 21 June 2021 at 10am, with an estimated hearing time of 5 days, before the Honourable Justice Baumann, such hearing to occur in person at the Sydney Registry of this Court

IT IS NOTED THAT

The matter will be referred to the Chambers of Justice Baumann so that trial directions can be made, if necessary.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5095 of 2020

Ms England

Applicant

And

Ms Harrisson

Respondent

REASONS FOR JUDGMENT

Introduction

Even though the present issue, which is the subject of these reasons for judgment, is about the admissibility of an affidavit having regard to the Evidence Act 1995 (‘Act’), ultimately this case concerns a two year old child X. X’s mother and father disagree about the parenting arrangements which are in his best interests. X’s mother is the applicant. She is 35 years old and is an educator. X’s father is the respondent. He is 38 years old and is also an educator. X’s mother would like him to live with her in New Zealand, but…

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 ENGLAND & HARRISSON

Details

AGLC: ENGLAND & HARRISSON [2020] FamCA 1083
Case: [2020] FamCA 1083
Decision Date: 18 December 2020

CaseChat Overview and Summary

In parenting proceedings before Altobelli J, the parties, England and Harrisson, were involved in a dispute concerning allegations of family violence. The central issue was whether an affidavit sworn by a third party, Ms B, should be admitted as evidence.

The court was required to determine the admissibility of Ms B's affidavit, specifically considering whether its probative value was outweighed by the potential prejudice or unfairness it might cause, pursuant to section 135 of the *Evidence Act 1995* (Cth). The evidence sought to be led related to historical allegations of family violence.

Altobelli J found that the probative value of the affidavit evidence was low. Applying the principles of section 135 of the *Evidence Act 1995* (Cth), the court concluded that the affidavit should be struck out and not read into evidence, as its limited probative value did not justify its admission.

Consequently, the court ordered that the affidavit of Ms B filed on 27 October 2020 be struck out and removed from the Court record. The matter was then listed for a Final Hearing commencing on 21 June 2021, estimated to take five days, before Justice Baumann.

Orders

Orders of the court

The affidavit of Ms B filed 27 October 2020 be and is hereby struck out and removed from the Court record.

The matter be listed for Final Hearing commencing on 21 June 2021 at 10am, with an estimated hearing time of 5 days, before the Honourable Justice Baumann, such hearing to occur in person at the Sydney Registry of this Court

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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