IABH and HRBH

[2007] FamCA 582

FAMILY COURT OF AUSTRALIA

IABH & HRBH [2007] FamCA 582

FAMILY LAW – EVIDENCE – Requirement to give notice under s 67 of the Evidence Act 1995 to rely upon hearsay – Interpretation of s 64

Evidence Act 1995 (Cth) s 64 and 67

APPLICANT: IABH

RESPONDENT: HRBH

FILE NUMBER: TVF 6 of 2003

DATE DELIVERED: 8 May 2007

PLACE DELIVERED: Cairns

JUDGMENT OF: Faulks DCJ

HEARING DATE: 8 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bartfeld QC

SOLICITOR FOR THE APPLICANT: Mr Taussig QC

COUNSEL FOR THE RESPONDENT:

Mr Kirk SC

Ms Pagani

SOLICITOR FOR THE RESPONDENT: Mr Keogh

Orders

1. The husband’s objections to the wife’s application pursuant to s 67 of the Evidence Act1995 are dismissed.

   IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as IABH v HRBH.

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER:  TVF 6/2003

IABH

Applicant

And

HRBH

Respondent

REASONS FOR JUDGMENT

1. The matter before me is an application of the wife’s pursuant to s 67 of the Evidence Act 1995 (the “Act”), in which she purports to have given reasonable notice in the terms of the Act regarding the use of evidence containing hearsay. The husband claims that the notice given is defective under s 64 in that it fails to comply either with the requirements of the Act or the Evidence Regulations made under the Act and would be unduly prejudicial to the husband.

2. In my opinion s 67 is intended to give people an opportunity to adduce hearsay evidence in the circumstances set out in the Division of the Act and it provides an opportunity for the opponents to raise matters that they say will be of particular prejudice to the individual involved.

3. The notice that is required under s 67 sensibly or not, is expressed as to be given in accordance with either the Regulations or the Rules of Court.  The only reasonable construction of “or” is that it means “or” and not "and".  In my opinion the notice that was given in this matter in so far as it relates to the evidence in the affidavit complies with the terms of the Family Law Rules 15.74.

4. In my opinion the Rule is defective in that it fails to require that there should be more prescription of which of the parts of the affidavit which are claimed to fall within the terms of the Rule and the notice.  Nevertheless, in my opinion, it complies, and therefore, in my opinion, notwithstanding the provisions of Regulation 4 of the Evidence Regulations, the notice is valid to the extent that it permits the material to be given in evidence notwithstanding the rule against hearsay.  It does not mean that what is contained in the various sections which are the subject of the application are necessarily part of the evidence for other reasons.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate: 

Date:  14 June 2007