Holt and Edmondson - [2016] FCCA 2238

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLT & EDMONDSON

[2016] FCCA 2238

Catchwords:
FAMILY LAW – Practice and procedure – evidence – cross examination.

Legislation:

Family Law Act 1975, s.79

Cases cited:

The Marriage of Kennon (1997) 22 FamLR 1

R v Chin (1985) 157 CLR 671

R V Kane (1977) 65 Cr App R 270
Prentice v Cummins (No 6) [2003] FCA 1002 at [27]
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Ruttledge & Ruttledge and Ors [2014] FamCA 791 at [15]
Kioa v West (1985) 159 CLR 550 at [585]
Re Katherine [2004] NSWSC 899 at [15]

Applicant:

MS HOLT

Respondent:

MR EDMONDSON

File Number:

PAC 3490 of 2015

Judgment of:

Judge Obradovic

Hearing date:

23 August 2016

Date of Last Submission:

23 August 2016

Delivered at:

Parramatta

Delivered on:

31 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr Hazelwood

Solicitors for the Applicant:

Penhall & Co Lawyers

Counsel for the Respondent:

Mr Greenaway

Solicitors for the Respondent:

John Spence & Associates

ORDERS

The Respondent’s oral application made on 23 August 2016 to restrict the cross examination of the husband such that questions pertaining to a possible Kennon argument not be permitted, is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3490 of 2015

MS HOLT

Applicant

And

MR EDMONDSON

Respondent

REASONS FOR JUDGMENT

Introduction

This is a Judgment dealing with a discrete issue of the permissibility of cross-examination on a matter about which there is no evidence in chief and about which evidence in chief was not pressed for reasons which are explained below.
At the commencement of hearing of this matter, the Court dealt with objections to Affidavits which had been filed by each of the parties.
The trial directions made on 13 May, 2016 provided, inter alia, as follows:
a)The case is listed for a two day Final Hearing at 10am on 22 and 23 August 2013.
b)Both parties are to file and serve a single, consolidated trial Affidavit relevant to their case by 6 July 2016; and
c)No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
The wife filed her trial Affidavit on 6 August 2016.
The husband filed his trial Affidavit on 22 July 2016.
Both parties were in breach of the Court directions, however, neither party claimed there was any prejudice to them as a result of the late filing of the trial Affidavits.
The objections taken by each of the husband and wife resulted in parts of the parties’ trial Affidavits either not being read or being struck out.
The wife had also filed a further and supplementary Affidavit on 11 August 2016, which was served on the same day. It was a fairly short Affidavit.…

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 Holt and Edmondson

Details

AGLC: Holt and Edmondson [2016] FCCA 2238
Case: [2016] FCCA 2238
Decision Date: 31 August 2016

CaseChat Overview and Summary

In the matter of *Holt and Edmondson*, heard before Judge Obradovic, the dispute concerned an application by the Respondent to restrict the cross-examination of the husband. Specifically, the Respondent sought to prevent questions relating to a potential *Kennon* argument from being put to the husband during cross-examination.

The central legal issue before the court was whether to grant the Respondent's application to limit the scope of cross-examination. This required the court to consider the admissibility and relevance of questions pertaining to a *Kennon* argument in the context of the proceedings.

Judge Obradovic dismissed the Respondent's application. The court's reasoning, though not detailed in the provided text, implicitly determined that questions relevant to a *Kennon* argument were permissible within the bounds of cross-examination in this instance. The court applied principles governing the scope and relevance of cross-examination in family law proceedings.

The outcome of the application was that the Respondent's oral application made on 23 August 2016 to restrict the cross-examination of the husband was dismissed.

Orders

Orders of the court

The Respondent’s oral application made on 23 August 2016 to restrict the cross examination of the husband such that questions pertaining to a possible Kennon argument not be permitted, is dismissed.

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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