Holgar & Stott

Case [2017] FamCA 772

FAMILY COURT OF AUSTRALIA

HOLGAR & STOTT AND ANOR [2017] FamCA 772

FAMILY LAW – PRACTICE & PROCEDURE – REHEARING - Scope of remitted hearing - where Full Court had previously remitted matter to different trial judge for further hearing on limited issue – where grounds of appeal did not challenge factual findings of original trial judge - whether it is open to the judge conducting the further hearing to adopt the findings of original trial judge – where the court exercised discretion and applied s69ZX(3) to adopt findings of earlier trial judge in relation to violence – where court did not adopt earlier findings in relation to the parties’ state of mind.

FAMILY LAW – PRACTICE & PROCEDURE – Scope of remitted hearing – Admissibility of evidence – where maternal grandmother objects to admit affidavit of one of the father’s witnesses – where the affidavit directly contradicts one of the findings of fact of original trial judge – where discretion of court permits the affidavit and the rehearing of that issue.

Family Law Act 1975 (Cth) s 69ZX(3)
In the Marriage of Schorel (1990) FLC 92-144
Hartnett & Sampson (Scope of a Rehearing) [2009] FamCAFC 1
B & J [2009] FamCAFC 103
Carl Zeiss-Stiftung & Rayner & Keeler Limited (No2) [1967] 1 AC 853
Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29
Kopel & Ferro [2016] FamCAFC 202
Bloomberg & Rod [2010] FamCAFC 112
Holgar & Stott and Anor [2016] FamCA 632
Ferro & Kopel (No2) [2016] FamCA 1124
APPLICANT: Mr Holgar
FIRST RESPONDENT: Ms B Stott (No appearance)
SECOND RESPONDENT: Ms Stott
INDEPENDENT CHILDREN’S LAWYER: Mr Adey
FILE NUMBER: ADC 2199 of 2008
DATE DELIVERED: 28 September 2017
PLACE DELIVERED: Cairns
PLACE HEARD: Adelaide (by video link to Cairns)
JUDGMENT OF: Tree J
HEARING DATE: 28, 29, 30 and 31 August 2017; 1 September 2017

REPRESENTATION

THE APPLICANT: In person
THE FIRST RESPONDENT: No appearance

COUNSEL FOR THE SECOND

RESPONDENT:

 Ms Lewis

SOLICITORS FOR THE SECOND

RESPONDENT:

Georgina Parker Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr McQuade
SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Norman Waterhouse Lawyers

Orders

  1. The findings of Berman J in relation to the father’s history of violence (except insofar as they relate to an alleged assault on Ms I Holgar on 25 December 2012) more specifically recited at paragraph 23 of the Reasons for Judgment of Tree J delivered 28 September 2017 are adopted as findings in relation to those matters in this trial.

  2. The father be permitted to read into evidence in the trial of these proceedings, the affidavit of Ms Y Holgar filed 22 August 2017 (subject to her being produced for cross-examination). 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Holgar & Stott and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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AGLC
Holgar & Stott [2017] FamCA 772
Case
[2017] FamCA 772
Decision Date

CaseChat Overview and Summary

In proceedings before Tree J of the Family Court of Australia, the matter concerned the scope of a remitted hearing following an earlier decision by the Full Court. The original appeal did not challenge the factual findings of the initial trial judge. The dispute revolved around whether the judge conducting the further hearing was entitled to adopt the findings of the original trial judge, particularly in light of an objection to the admissibility of an affidavit that directly contradicted one of those earlier findings.

The primary legal issues before Tree J were the extent to which the judge could adopt the factual findings of the original trial judge on a remitted hearing, and the admissibility of evidence on that remitted hearing, specifically an affidavit that contradicted a previous finding of fact. The court was required to consider its discretion in relation to the adoption of prior findings and the admission of new evidence that challenged those findings.

Tree J exercised discretion and applied s 69ZX(3) of the relevant legislation to adopt the original trial judge's findings concerning the father's history of violence, with specific exceptions. However, the court did not adopt the earlier findings regarding the parties' state of mind. Furthermore, the court permitted the admission of an affidavit from one of the father's witnesses, subject to cross-examination, even though it contradicted a previous finding of fact, thereby allowing for the rehearing of that specific issue.

The court ordered that the findings of the original trial judge, Berman J, in relation to the father’s history of violence (with specific exclusions) be adopted as findings in the current trial. Additionally, the father was permitted to introduce the affidavit of Ms Y Holgar into evidence, provided she was available for cross-examination.

Orders

Orders of the court

1.

The findings of Berman J in relation to the father’s history of violence (except insofar as they relate to an alleged assault on Ms I Holgar on 25 December 2012) more specifically recited at paragraph 23 of the Reasons for Judgment of Tree J delivered 28 September 2017 are adopted as findings in relation to those matters in this trial.

2.

The father be permitted to read into evidence in the trial of these proceedings, the affidavit of Ms Y Holgar filed 22 August 2017 (subject to her being produced for cross-examination).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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