Kolovos and Kolovos (Ruling No.4)
[2009] FMCAfam 1177
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOLOVOS & KOLOVOS (Ruling No.4) | [2009] FMCAfam 1177 |
| FAMILY LAW – Interim Ruling. |
| Applicant: | MS KOLOVOS |
| Respondent: | MR KOLOVOS |
| File Number: | MLC 6862 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing date: | 9 September 2009 |
| Date of Last Submission: | 9 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Fronistas |
| Solicitors for the Applicant: | Antippa Lawyers |
| Counsel for the Respondent: | Mr P. Davis |
| Solicitors for the Respondent: | Maria Barbayannis & Co. |
IT IS NOTED that publication of this judgment under the pseudonym Kolovos & Kolovos (Ruling No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6862 of 2008
| MS KOLOVOS |
Applicant
And
| MR KOLOVOS |
Respondent
REASONS FOR JUDGMENT
(Ruling)
In this matter there has been an objection to the Court receiving in evidence the affidavit filed by Mr G on 7 May 2009. It is first submitted that Mr G has failed to comply with the formal requirements required of expert witnesses, and it is clear that that is so.
He has not, leaving aside formal recitation of his qualifications, indicated that he has been made aware of, and had regard to, the requirements imposed by the Court on independent expert witnesses. It is true that he has not set out his qualifications in a formal way, but I accept Mr Davis’ submission that one might reasonably suppose that, as a chartered accountant, he would have that expertise that he deposes to.
The real difficulty with this material is that it is not impartial. He is, as he deposes, the brother-in-law of one of the parties and, in my view, the partiality that that necessarily and very understandably gives rise to is blatantly obvious throughout the tenor of his report to Ms Barbayannis.
It is unfortunate that I have to say this but, in my view, the history that he describes in paragraphs 2.1 to 2.4 of his report is completely inconsistent with my understanding of the evidence. Since those findings are at the core of the conclusions at which he arrives, his report is rendered effectively virtually useless.
There are assumptions throughout which are simple, uncritical adoptions of what Mr Kolovos, the primary party in the proceedings, has told him. His conclusion by way of illustration, paragraph 4.5, that payments for family expenses in excess of Mrs Kolovos’ fixed income can be attributed to income introduced by Mr Kolovos flies in the face of the evidence I have just heard from Mr Kolovos’ mother.
The evidence recited at paragraphs 3.5, 3.6 and 4.7 about what
Mr Kolovos did in relation to renovations is hearsay unless it is otherwise deposed to in his other affidavit. If it is in his other affidavit, he can give that evidence there, but if it is not, it is just hearsay.
I accept entirely the force of Mr Davis’ submission that it is a major and very unusual step to disallow an affidavit, but this report on its face has no probative value whatever, and I am not going to admit it.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 9 September 2009
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