Greco and Pendle (No. 2)

[2008] FamCA 911

FAMILY COURT OF AUSTRALIA

GRECO & PENDLE (NO. 2) [2008] FamCA 911

FAMILY LAW – PROCEDURAL – Interim issues re trial evidence

Family Law Act 1975 (Cth)

APPLICANT: Ms Greco

RESPONDENT: Mr Pendle

INDEPENDENT CHILDREN’S LAWYER: Ms M Orwin

FILE NUMBER: DNC 683 of 2007

DATE DELIVERED: 9 September 2008

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: STRICKLAND J

HEARING DATE: 9 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms D Elliott

SOLICITOR FOR THE APPLICANT: Northern Territory Legal Aid Commission

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Orwin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Margaret Orwin Barrister

Orders

1. That by 4:00pm on 7 October 2008 the mother’s solicitors provide to the father a list of any objections to his affidavit of evidence in chief and the affidavit of evidence in chief of his partner.

2. That further consideration of this matter be adjourned to a directions hearing before Justice Dawe on a date to be advised in the month of October 2008.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER:  DNC 683 of 2007

MS GRECO

Applicant

And

MR PENDLE

Respondent

EX TEMPORE REASONS

1. This is a matter that unfortunately had to adjourned out of this sitting.  It is now intended that the trial take place before Dawe J in the next sitting in Darwin which would be in late November/early December.

2. Today there is a directions hearing to deal with any issues relating to the affidavits filed by the parties and just to bring the matter up to date.  Unfortunately the father has not yet viewed the two DVDs which have been produced pursuant to subpoenas nor has he yet seen the material produced by the D Centre.  He needs to do that before he leaves Darwin and he has assured me that he will.

3. In relation to the DVDs, Ms Elliott has put to me that it is unnecessary for the police officers involved with those DVDs to be called to give evidence.  That is agreed by the father and Ms Orwin.

4. With the second DVD Ms Elliott suggests that it is not necessary for that to be entered into evidence.  Ms Orwin tends to agree with that.  The father of course has not seen the DVD, and given that that is a matter that should be left for the trial Judge, and so I do not propose to make any order about that.  Once the father sees the DVDs, he can assess his position generally in relation to them and other witnesses if he needs to look at that.

5. Separate to that, Ms Elliott has raised certain objections to the admissibility of various paragraphs of the father's affidavit of evidence in chief filed on 15 August 2008.

6. There have been two specific topics raised.  One is in relation to the evidence of what the child has said to the father, namely, that it is a summary.  It does not provide direct speech and does not provide details of when the conversation took place.  The second objection is in relation to references to subpoenaed material.  I need say no more than the subpoenaed material is not yet before the Court and thus it is premature to comment on it in an affidavit.  Even if it was though, it is not open to the father, by way of affidavit, to provide a conclusion or implication from that subpoenaed material.  That is a matter for the trial Judge.

7. In those two areas and there may be others, I agree with Ms Elliott’s submission.  How I propose to deal with that is to require Ms Elliott to provide a list of objections to the material in the affidavits to the father and he will then need to prepare and file a substitute affidavit taking into account those issues of admissibility.

8. At this stage I am not going to provide a time frame for that because this matter will now in effect go to Dawe J and her Honour will need to set up a directions hearing in the not too distant future to address obviously the issue of the second DVD, any further issues as to admissibility and any other matters relevant to ensuring that a hearing takes place in November/December.

9. The third issue raised today is in relation to reports that were before the Court prior to consent orders being made finalising this case.  Of course, I will not be the trial Judge, and that is a matter that needs to be ultimately left to Dawe J, but at this stage, everybody is proceeding on the basis that some of those reports will be before the Court, but only as background and historical material.

10. It is not intended that there will be examination and cross-examination in relation to those reports or the allegations dealt with by them. The primary focus in this case will be on the allegations that have arisen of recent times and more specifically, what is overall in the best interests of this young child.

11. Now by saying that, I am not intending to bind the trial Judge in relation to how those earlier reports are treated but I am just recording the result of the discussions today about that.  That seems to me to be a sensible approach to this matter.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 9 September 2008.

Associate