Finazzi and Finazzi - [2011] FamCA 973

FAMILY COURT OF AUSTRALIA

FINAZZI & FINAZZI

[2011] FamCA 973

FAMILY LAW – EVIDENCE – Admissibility – where affidavit evidence regarding the husband’s character and skill objected to by the wife – where the wife contends the evidence is irrelevant and, if relevant, inadmissible as comment – where the husband contends the evidence is admissible as “lay opinion” pursuant to s 78 of the Evidence Act 1995 – whether the evidence is relevant – where the evidence relates to, at most, the husband’s skill, which is not in issue in this case – where the evidence is not relevant and therefore, inadmissible.

Evidence Act 1995
Family Law Act 1975 (Cth)

Mallet v Mallet (1984) 156 CLR 605; (1984) FLC 91-507
JEL & DDF (2001) FLC 93-075
SL & EHL [2005] FamCA 132

Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Mr Finazzi

RESPONDENT:

Ms Finazzi

FILE NUMBER:

BRC

3023

2010

DATE DELIVERED:

13 December 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

13 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk SC

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Page SC

SOLICITOR FOR THE RESPONDENT:

Jones Mitchell Lawyers

Orders

IT IS DIRECTED THAT

A copy of the transcript of these reasons be expedited and provided to each of the parties free of charge ahead of the adjourned second part of the trial.

IT IS NOTED that publication of this judgment under the pseudonym Finazzi & Finazzi 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 BRISBANE

FILE NUMBER: BRC 3023 of 2010

Mr Finazzi

Applicant

And

Ms Finazzi

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Objection is taken on behalf of the wife to large portions of the affidavits filed by six witnesses on behalf of the husband. In essence, those witnesses give evidence of the qualities of the husband which, it is said, is directly relevant to an issue in these proceedings. The objection is that the evidence is irrelevant or that it is “comment”, the last being, as I understand it, a shorthand means of asserting that the evidence consists not of probative facts, but of argument.
The issue to which the evidence is said to pertain, relates to what has been labelled in decisions of this court, and in academic writings, as “special contribution.” That issue has been flagged as such in outlines of case filed by each of the parties. The husband refers to the decision of the High Court in Mallet v Mallet (1984) 156 CLR 605; (1984) FLC 91-507 and to decisions of this court in JEL & DDF (2001) FLC 93-075 and SL & EHL [2005] FamCA 132.
It will be argued centrally by the husband that he is, and has been, possessed of special or unique skills and has exhibited a special or unique set of attributes such that his contribution in the s 79…

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 Finazzi and Finazzi

Details

AGLC: Finazzi and Finazzi [2011] FamCA 973
Case: [2011] FamCA 973
Decision Date

CaseChat Overview and Summary

In *Finazzi & Finazzi*, the Family Court of Australia considered an objection raised by the wife concerning affidavit evidence filed by the husband. The husband sought to adduce evidence from six witnesses regarding his character and skills, which the wife contended was irrelevant and inadmissible as mere comment. The husband argued that this evidence constituted admissible "lay opinion" under section 78 of the *Evidence Act 1995* (Cth).

The central legal issue before the court was whether the affidavit evidence regarding the husband's personal qualities and skills was relevant to the proceedings. Specifically, the court had to determine if such evidence could rationally affect the assessment of the probability of the existence of a fact in issue, as required by section 55 of the *Evidence Act 1995* (Cth). The husband contended that this evidence was relevant to the issue of "special contribution" to the acquisition, conservation, or improvement of the parties' property.

Justice Murphy found that the evidence was irrelevant. The court reasoned that the facts in issue in family law property proceedings, particularly concerning contributions, relate to the nature, form, and characteristics of the contributions made by each party within the context of their marriage and its specific circumstances. The evidence presented by the husband, which described his personal qualities and skills and compared them to those of other businessmen, did not rationally affect the assessment of his contributions to the marriage or the property. The court emphasised that the focus should be on the contributions made by the parties to each other and to the marriage assets, rather than on the husband's general business acumen or his standing relative to others in the business world, as established in *Mallet v Mallet*.

Consequently, the court ruled that the affidavit evidence was inadmissible because it was irrelevant. As the evidence failed the threshold test of relevance, it was unnecessary to consider its admissibility under section 78 of the *Evidence Act 1995* (Cth). The court directed that a copy of its reasons be expedited and provided to the parties ahead of the adjourned second part of the trial.

Orders