Merritt and Holdsworth (No 2)

[2016] FamCA 235

FAMILY COURT OF AUSTRALIA

MERRITT & HOLDSWORTH (NO 2) [2016] FamCA 235

FAMILY LAW – EVIDENCE – admissibility.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Merritt

RESPONDENT: Ms Holdsworth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1399 of 2015

DATE DELIVERED: 3 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Davies Watson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Maramis

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Maloney Anderson Legal

Ms Boymal

Victoria Legal aid

Orders

1. That the affidavit of Mr I filed 8 February 2016 is struck out.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Merritt & Holdsworth (No 2) 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 MELBOURNE

FILE NUMBER: MLC 1399 of 2015

Mr Merritt

Applicant

And

Ms Holdsworth

Respondent

REASONS FOR JUDGMENT

1. Before me, as this trial is about to begin, is an objection by counsel for the applicant to the respondent relying upon an affidavit of Mr I which was filed at the Court on 8 February 2016. Counsel for the respondent mother has requested that I rule on the objection as to its admissibility. The starting point in this case is, very simply, that an order was made by Judge McGuire in the Federal Circuit Court on 9 April 2015, as the case was set down for trial, that pursuant to s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) the rules of evidence should apply to this trial.

2. That particular order has some relevance now, because the matter was subsequently transferred to this Court, and I conducted a hearing on 14 December 2015 at which the discussion about s 69ZT was raised, and the order that I made actually has a notation to the effect that that order still applies. Notwithstanding the fact that that order applied, the practitioner for the respondent filed this affidavit, as I have indicated. The starting point in relation to admissibility is ss 55 and 56 of the Evidence Act 1995 (Cth). It escapes me, when one reads the affidavit, or more importantly the report attached to it, just what its relevance is to any fact in issue in this particular case.

3. Summarising it as best I can, it is a narrative of what the mother told the psychologist prior to these proceedings commencing, when he had discussions with her on 8 March, 14 March, and 29 March 2014. It is not necessary for me to traverse the questions of what is and what is not expert evidence, but under section 79 of the Evidence Act, evidence of an opinion is inadmissible unless it is qualified by some expertise. Mr I may very well have the necessary qualifications as a psychologist to give rise to the expertise, but that is only relevant if one understands what it is about which he is giving an opinion. Of the various pages of the report, there is one line that has any opinion at all, and that is the very last sentence in which he says:

   I can see no other option than, at this stage, [B’s] access to his father needs to be supervised at all times by a responsible adult.

4. How that is connected to the narrative I am not sure, but more importantly he qualifies it by saying “at this stage”. The function of the Court in this particular is to look to the future, rather than the past. In other words, it is not particularly relevant – if relevant at all – as to what the situation was in May 2014. So the first problem that I am struggling with is to work out what it is that this affidavit is designed to establish for the purposes of relevance under ss 55 and 56 of the Evidence Act.

5. There are other technical problems in this case, one of which is that no application has been made to this court for the permission to use an expert and in particular, as the rules provide, a single expert. That is not an insurmountable problem, but I again point out no application is made. The other issue is that it appears that, for medical reasons, the witness is unavailable for cross-examination. That is not a basis to reject the affidavit: it is a basis to have an argument about the weight to be given to the affidavit. Having regard to the fact that I cannot understand what its relevance is, the fact that the rules have not been complied with, the fact that s 69ZT of the Act does apply here, the evidence cannot be seen to be admissible.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 3 March 2016.

Associate:

Date:  14 April 2016