HAYES & EDDINGTON - [2014] FamCA 243

FAMILY COURT OF AUSTRALIA

HAYES & EDDINGTON

[2014] FamCA 243

FAMILY LAW – EVIDENCE – Admissibility – Legal Personal Representatives of the Estate of the Respondent objected to the whole of the evidence in an affidavit of the applicant - the court refused to admit that evidence as its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the respondents

FAMILY LAW – EVIDENCE – Admissibility - Legal Personal Representatives to the Estate objected to part of the evidence in an affidavit of the solicitor for applicant as it was evidence of communication made between the late respondent and the applicants solicitor in connection with an attempt to negotiate a settlement of the dispute

Family Law Act 1975 (Cth) pt VIIIAB

Evidence Act 1995 (Cth) ss 131, 135

APPLICANT:

Ms Hayes

RESPONDENT:

Mr Eddington

FILE NUMBER:

MLC

2949

2012

DATE DELIVERED:

24 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

24 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr St John SC

SOLICITOR FOR THE APPLICANT:

C E Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld QC

SOLICITOR FOR THE RESPONDENT:

C Lanteri & Associates

Orders

Pursuant to s 131 of the Evidence Act 1995 (Cth) the applicant be refused leave to rely upon paragraphs 6, 7 and 8 of the affidavit of Mr B filed 17 February 2014,
Pursuant to s 135 of the Evidence Act 1995 (Cth) the evidence contained in the applicant’s affidavit filed 17 February 2014, is excluded.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Eddington 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 2949 of 2012

Ms Hayes

Applicant

And

Mr Eddington)

Respondent

EX-TEMPORE

REASONS FOR JUDGMENT

These reasons relate to questions of evidence in the context of an application by the Legal Personal Representatives of the Estate of the late Mr Eddington seeking to strike out the proceedings for want of jurisdiction, being the proceedings commenced by Ms Hayes claiming an adjustment of property pursuant to Part VIIIAB of the Family Law Act 1975 (Cth). In the context of that jurisdictional determination, the applicant sought to rely upon two affidavits: one by her sworn and filed on 17 February 2014 and the second, an affidavit by Mr B sworn 15 February 2014 and filed 17 February 2014. Senior Counsel for the Legal Personal Representatives of the Estate of the late Mr Eddington asked the Court to exclude all or parts of that evidence from the material upon which the jurisdictional determination is to be made.
In terms of the affidavit of Mr B, there is what could be described as mild objection to paragraphs 1, 2, 3, 4 and 5 and significant objections to paragraphs 6, 7 and 8. In relation to the latter three paragraphs the objection arises pursuant to s…

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.

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Details

AGLC: HAYES & EDDINGTON [2014] FamCA 243
Case: [2014] FamCA 243
Decision Date: 24 March 2014

CaseChat Overview and Summary

In *Hayes & Eddington*, Benjamin J of the Family Court of Australia considered objections raised by the legal personal representatives of the estate of the respondent concerning the admissibility of evidence presented by the applicant. The dispute involved the admissibility of an affidavit sworn by the applicant and an affidavit sworn by the applicant's solicitor.

The primary legal issues before the court were whether the evidence contained in the applicant's affidavit should be admitted, and whether certain communications contained in the solicitor's affidavit, made in connection with settlement negotiations with the deceased respondent, were admissible. The court was required to determine the application of sections 131 and 135 of the *Evidence Act 1995* (Cth) to the evidence in question.

Benjamin J reasoned that the evidence in the applicant's affidavit was excluded pursuant to section 135 of the *Evidence Act 1995* (Cth) because its probative value was substantially outweighed by the danger that it might be unfairly prejudicial to the respondents. Furthermore, the court refused the applicant leave to rely upon specific paragraphs of the solicitor's affidavit pursuant to section 131 of the *Evidence Act 1995* (Cth), which deals with the exclusion of evidence of settlement negotiations.

Consequently, the court ordered that the applicant be refused leave to rely upon paragraphs 6, 7 and 8 of the affidavit of Mr B filed 17 February 2014, and that the evidence contained in the applicant’s affidavit filed 17 February 2014, be excluded.

Orders

Orders of the court

1. Pursuant to s 131 of the Evidence Act 1995 (Cth) the applicant be refused leave to rely upon paragraphs 6, 7 and 8 of the affidavit of Mr B filed 17 February 2014,

2. Pursuant to s 135 of the Evidence Act 1995 (Cth) the evidence contained in the applicant’s affidavit filed 17 February 2014, is excluded.

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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