Huffman and Gorman (No 3)

[2014] FamCA 1078

FAMILY COURT OF AUSTRALIA

HUFFMAN & GORMAN (NO. 3) [2014] FamCA 1078

FAMILY LAW – EVIDENCE – Admissibility of evidence within an affidavit – Separating of evidence and submissions.

APPLICANT: Mr Huffman

RESPONDENT: Ms Gorman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 3882 of 2011

DATE DELIVERED: 13 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT: Ms Judge

SOLICITOR FOR THE RESPONDENT: Redmond Hale Simpson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wearne as advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Parramatta

Orders

1. The mother’s objection to paragraphs 48 to 98 of the father’s affidavit filed on 23 September 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Huffman & Gorman 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 PARRAMATTA

FILE NUMBER: PAC 3882  of 2011

Mr Huffman

Applicant

And

Ms Gorman

Respondent

REASONS FOR JUDGMENT

1. In paragraph 4 of page 3 of the mother’s case outline, there is a general broad range of objection to all of the contents of paragraphs 48 to 98 of the father’s affidavit filed on 23 September 2014. Essentially the mother objects to these paragraphs on the basis that this is effectively simply commentary made by the father and includes in some parts conclusions, opinion, innuendo and submissions.  Whilst some of the paragraphs do contain matters of commentary and some of them are extremely general and some also do fall in that category of stream of consciousness thinking, I think there are contained in them other parts which are not only admissible but may be of some assistance to the Court to determine the matters in dispute, particularly in relation to the general environment that prevailed in the household when the couple were together.

2. I think if these paragraphs were simply excluded then there is that risk that some relevant and probative material would also be included in what is being excluded.  On the other hand, I think the exercise of going through each one them paragraph by paragraph would simply take all afternoon and obtaining further evidence or seeking leave to have other oral evidence I do not think also would be a solution.  At the end of the day I think it is a matter of weight.

3. I am capable of separating it out, those which are matters of evidence and those which are matters of submission.  I will attach no weight to those which are matters of opinion and submission but then the appropriate weight will be attached to those matters which are of evidence.  So they are not excluded but of course I will hear the parties in terms of the weight to be attached and there might be particular paragraphs within that group of paragraphs where there is very little weight attached and others that might be significant.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 October 2014.

Legal Associate: 

Date:  23 October 2014