GUNBY & CARRINGTON - [2009] FamCA 965

FAMILY COURT OF AUSTRALIA

GUNBY & CARRINGTON

[2009] FamCA 965

FAMILY LAW – PRACTICE AND PROCEDURE – expert evidence – child proceedings – whether permission should be granted to the mother to rely on the evidence of an expert with respect to issues of family violence – where the expert evidence is not based on written instructions – where the expert did not interview the father – where the prejudicial nature of the evidence outweighs its probative value – exercise of the Court’s discretion under s 135 of the Evidence Act 1995 (Cth) – refusal by the Court to grant the mother permission to rely on the expert evidence

FAMILY LAW – COSTS – question of costs adjourned to the conclusion of the trial

Family Law Act 1975 (Cth) ss 69ZT &121
Evidence Act 1995 (Cth) s 135
Family Law Rules 2004 (Cth) Part 15.5, rr 15.42, 15.52 & 15.54

Knight & Knight [2007] FamCA 263
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Paino & Paino (2008) 40 Fam LR 96
HG v R (1999) 197 CLR 414

APPLICANT:

Ms Gunby

RESPONDENT:

Mr Carrington

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commissions of SA

FILE NUMBER:

ADC

4119

2008

DATE DELIVERED:

25 September 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

25 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Swan

SOLICITOR FOR THE APPLICANT:

Swan Lawyers

COUNSEL FOR THE RESPONDENT:

Mrs Lindsay

SOLICITOR FOR THE RESPONDENT:

Barr Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Cocks

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Services Commission of SA

Orders

The Court refuses to grant the mother permission to rely upon the affidavit of Dr S at the conclusion of these proceedings.
The Applications in a Case filed by the mother on the 25 August 2009 and 22 September 2009 are dismissed.
Leave is given to the father to file and serve his affidavits of his witnesses within 7 days from today.
Leave is given to the mother to file and serve her affidavits of her witnesses within 14 days from today.
This matter is adjourned to 12 October 2009 at 9.15 am before the Honourable Justice Dawe for a compliance check to get it ready to proceed to trial by way of conclusion before me on 21 October 2009.
The question of the costs of this application is adjourned to the conclusion of the trial when other matters concerning the discretion to be exercised when determining the question of costs can be appropriately considered.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4119 of 2008

MS GUNBY

Applicant

And

MR CARRINGTON

Respondent

EX –TEMPORE REASONS FOR JUDGMENT

This is the application by the mother seeking permission to rely upon the evidence of Dr S; in particular the affidavit of Dr S filed on 9 June…

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 GUNBY & CARRINGTON

Details

AGLC: GUNBY & CARRINGTON [2009] FamCA 965
Case: [2009] FamCA 965
Decision Date: 25 September 2009

CaseChat Overview and Summary

In the matter of *Gunby & Carrington*, heard before Dawe J, the mother sought permission to rely on the affidavit of an expert concerning issues of family violence. The father opposed this application.

The central legal issue before the Court was whether to grant the mother permission to adduce the expert evidence, considering that the expert's evidence was not based on written instructions and the expert had not interviewed the father. The Court was required to determine if the prejudicial nature of the evidence outweighed its probative value, and to exercise its discretion under section 135 of the *Evidence Act 1995* (Cth).

Dawe J refused the mother permission to rely on the expert's affidavit. The Court reasoned that the expert evidence lacked sufficient probative value due to the absence of written instructions and the failure to interview the father, rendering it unfairly prejudicial. Consequently, the Court dismissed the mother's applications filed on 25 August 2009 and 22 September 2009. The question of costs was adjourned to the conclusion of the trial.

Orders

Orders of the court

The Court refuses to grant the mother permission to rely upon the affidavit of Dr S at the conclusion of these proceedings.

The Applications in a Case filed by the mother on the 25 August 2009 and 22 September 2009 are dismissed.

Leave is given to the father to file and serve his affidavits of his witnesses within 7 days from today.

Leave is given to the mother to file and serve her affidavits of her witnesses within 14 days from today.

This matter is adjourned to 12 October 2009 at 9.15 am before the Honourable Justice Dawe for a compliance check to get it ready to proceed to trial by way of conclusion before me on 21 October 2009.

The question of the costs of this application is adjourned to the conclusion of the trial when other matters concerning the discretion to be exercised when determining the question of costs can be appropriately considered.

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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