Holgar & Stott

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.