Guillermo and Boehm

[2013] FamCA 685

FAMILY COURT OF AUSTRALIA

GUILLERMO & BOEHM [2013] FamCA 685

FAMILY LAW – Evidence; objection ruling.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Guillermo

RESPONDENT: Ms Boehm

FILE NUMBER: MLC 3237 of 2012

DATE DELIVERED: 7 August 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lampe

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Scriva

SOLICITOR FOR THE RESPONDENT: Pinto Law Solicitors

Orders

1. That there be rulings in respect of the particular paragraphs of the parties’ respective affidavits as set out in the reasons delivered extempore this day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Guillermo & Boehm 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 MELBOURNE

FILE NUMBER: MLC 3237 of 2012

Mr Guillermo

Applicant

And

Ms Boehm

Respondent

REASONS FOR JUDGMENT

1. This is an unusual ruling in that the ultimate and final hearing of the parties’ parenting and financial dispute is due to commence in the middle of September before another judge. 

2. This parenting dispute centres on B who is three years of age.  Only weeks ago the parties each filed their respective documents setting out what orders they propose for the future of their son.  They are about to attend upon a forensic psychologist at their expense for the purposes of the preparation of a family report.  That attendance after each had filed their trial affidavits has led to the dispute about what the experienced social scientist should read.  The issue of the admissibility of the parties’ evidence is therefore the focus of this ruling. 

3. The husband is the applicant, and he seeks a variety of times with the child, but the core weekly period requested is a regime of alternate weekends from Friday through to Monday and then Tuesday evening through to Thursday evening each week.  For this ruling I shall ignore the ancillary times because I suspect the focus of the expert and the Court will be on the child’s routine, thus it would seem that the husband is seeking that the child move regularly between two households.

4. The wife’s position is that the child should spend six hours with the husband on Wednesdays and then alternate weekends from Saturday morning until Sunday evening.  An obvious inference from those positions is that the wife has sufficient confidence in the husband to say that he can care for the child at least on one night and obviously during the day time. 

5. An examination of the wife’s existing affidavits suggests that she does not accept that the husband can do more than that competently.  I suspect that much will rather turn on the ability of the child to adapt to change and how he will be affected by routine.  In that regard, the issue is about competency and capacity in respect of the parents, but also what impact there will be on the child of orders.

6. The parties will do well to understand that the Court is not bound by either of their proposals, but will make orders it considers proper if they are in the child’s best interests. 

7. It is also timely to point out that the striking out of evidence, as I am requested to do here, does not mean that a judge cannot be asked to hear further evidence at the trial which ultimately is a hearing pursuing the best interests principles. 

8. I have read the submissions of each of the parties and they were helpful.  The husband relied on rule 15.13 of the Family Law Rules (2004), but those rules were operative prior to the commencement of the 2006 amendments to the Family Law Act 1975 (Cth) (“the Act”), and in particular Division 12A of the Act.

9. If it were not for s 69ZT(1) and (2) of the Act, the Evidence Act 1995 (Cth) would apply. In this case no order for the application of the relevant parts of the evidence has been made. Accordingly, if the Court admits evidence, it has to specify what weight, if any, it gives to that evidence and why.

10. What has not been altered is the applications of ss 55 and 56 of the Evidence Act. Those provisions focus on relevance. Section 55(1) provides that:

    Evidence is relevant if, on the basis that it is accepted, could, not would, rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings.

11. Thus there must be a rational connection between the evidence and the fact in issue.  That rationality is objectively tested, and ever so here, where I cannot test it at this preliminary stage.  The person wishing to lead the evidence must show the process of reasoning as to how the statement to be led would affect the probability of the fact in issue.  The facts in issue here are those I earlier mentioned about parenting capacity and competency, but also what is the child’s capacity to adapt to change in the arrangements proposed by his parents. 

12. It is also timely to remember that the Court should only make a parenting order if it is proper to do so and in the child’s best interests.  That is highly subjective.

13. Section 69ZT ameliorates the requirement of strict compliance with evidentiary rules, but the evidence to be led must be relevant in the sense earlier described.  Section 69ZT adds the unusual dimension for the decision-maker of having to describe what weight is given to the statement to show how it affects the probability of the fact in issue.  A statement which is argumentative would normally fall foul of the admissibility test because the rules would suggest that it should be struck out.  Section 69ZT would not take a similar stand provided the statement could be shown to have weight in affecting the determination of the fact in issue.

14. It is hardly likely therefore, that an argument, as distinct from an asserted fact, would normally be given much, if any, weight.  Similar considerations apply to opinions which are not of an expert nature.  Whilst opinions are not inadmissible because of s 69ZT, the provision allows that evidence to be led.  The weight to be given to such an opinion must often be questionable if it is unlikely to effect the determination of the facts in issue.  Thus rule 15.13 is not very helpful in a parenting dispute, but nor is the simple assertion that a statement can be made because s 69ZT allows any evidence to be led. 

15. Because the Court has to expose its reasoning to scrutiny about weight, a person who wishes to lead evidence must be able to point to its relevance in the sense set out in the Evidence Act. The nub of the husband’s argument was that much of wife set out in her affidavit was argument or submission rather than fact. I have to agree, but there are still questions about whether those statements could have some bearing in the facts in issue. The wife’s submission was that the husband had not relied specifically on relevance as an objection, and that the Court should determine at trial what weight the statements should be given.

16. That involves a further argument at trial, but it also means that the social scientist has to presume that the material will be given weight.  The absence of the formal claim of objection on the ground of relevance does not assist the wife because of what I have set out above about the connection between relevance and weight.  As I also mentioned, the rejection of the evidence now does not mean that a Court cannot or should not allow it to be led at trial, so to some extent the husband’s concern about the social scientist does not go away either.  The social scientist will have to work with his tools, and the Court will have to do the best it can with that opinion at trial, depending on what evidence has weight as determined by the trial judge. 

17. On the basis that I have been asked to make rulings, and with all those limitations, I make the rulings using the numbering of the parties’ practitioners as follows.  On the husband’s objection, 5 is rejected, 10, 11 and 12 are upheld;  17, 21, 24, 27, 28 are rejected, 30 is upheld, 31, 32, 37 are rejected.  40, 41, 42, 43, 44, 45, 46 and 47 are upheld.  On the wife’s objections, 3 is rejected, 12 is upheld, 13, 14, 15, 16, 17, 20, 25 are rejected and 31 is upheld.  This exercise has indicated the sense, if not the importance, to practitioners drafting affidavits with a view to the Evidence Act, and indeed rule 15.13 of the rules applying.  That approach might avoid the problem of the Court rejecting the statement of a witness because of weight;  it also highlights that where hearsay as relied upon, as here, s 69ZT might be seen to allow it to be taken into account, but if it is remote and challenged, it might be given no weight, whereas the calling of the primary source might have the opposite effect. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 August 2013.

Associate: 

Date:  3 September 2013