Nugent and Berg

[2016] FamCA 815

FAMILY COURT OF AUSTRALIA

NUGENT & BERG [2016] FamCA 815

FAMILY LAW – Interlocutory directions about single expert witness and rules of evidence to apply.

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

APPLICANT: Mr Nugent

RESPONDENT: Ms Berg

FILE NUMBER: MLC 1801 of 2015

DATE DELIVERED: 9 September 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wright

SOLICITOR FOR THE APPLICANT: Blackwood Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Raniga

SOLICITOR FOR THE RESPONDENT: RRR Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bult

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Taylor Preston Lawyers

Orders

1. That paragraphs 1-10 of the orders made on 5 August 2016 are discharged.

2. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 6 February 2017 subject to any part heard case as a three day case.

3. The evidence in chief of all witnesses shall be given by affidavit.

   TIMETABLE:

4. By 4 pm on 14 October 2016 the applicant file and serve upon all other parties all affidavits of evidence to be relied upon.

5. The applicant pay all required court fees by 4 pm on 14 October 2017.

6. By 4 pm on 4 November 2016 the respondent file and serve upon all other parties all affidavits of evidence to be relied upon.

7. By 4 pm on 11 November 2016 the applicant file and serve any affidavit in reply.

8. By 4 pm on 31 January 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

9. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

10. That pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) the rules of evidence shall apply to all evidence in these proceedings.

11. That pursuant to s 62G(2) of the Act, the parties attend upon and at the direction of Ms B for the purposes of the preparation of a family report not to be commenced until after the parties have served upon Ms B their affidavits of evidence in chief (subject to any unresolved questions of adversarial witnesses).

12. That the costs of Ms B be shared equally between the parties.

SUBPOENAE

1. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

2. By 4 pm on 3 February 2017 all parties file electronically to …  a case outline in one document setting out:

   (a)the outline of the issues in dispute;

   (b)the list of the affidavits to be read;

   (c)a concise set of orders to be sought; and

   (d)the list of objections to evidence requiring a ruling.

3. That the parties have liberty to apply on an urgent basis for the admission into evidence of adversarial witnesses.

AND THE PARTIES SHOULD NOTE:

A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nugent & Berg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1801 of 2015

Mr Nugent

Applicant

And

Ms Berg

Respondent

REASONS FOR JUDGMENT

1. In this mention today, the question of the conduct of these proceedings has been raised and, in particular, the matters that arise out of division 12A of the Act. Ultimately, it has been agreed that the single expert witness rule should apply and that the parties have leave to apply on a urgent basis for the admission into evidence of adversarial witnesses, if it appears that there is a conflict between the supposed experts who are giving the single expert witness advice.

2. All of that then then gives rise to the question of how the evidence should otherwise be presented. Section 69ZT of the Family Law Act 1975 (Cth) (“the Act”) provides that the provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings. Despite that, subsection (3) provides that a Court may decide to apply one or more of the provisions of a division of the Evidence Act if the Court is satisfied that the circumstances are exceptional and where the Court has taken into account the importance of the evidence, the nature of the subject matter of the proceedings, the probative value of the evidence and the powers of the Court to adjourn the hearing to make another order or give a direction in relation to evidence.

3. This particular dispute concerns the residence of nine year old C (the child).  Whichever way one looks at it, the real issue is a dispute about parental responsibility.  The parties disagree about whether the child should be homeschooled or schooled in the mainstream system, and it is that dispute that is underpinning their respective applications that the child should live with them.  As such, there are a lot of issues that the parties want to point to in relation to the question of what is best for the child in terms of her education and how each of them, respectively, will provide for that. 

4. I have been told that there have been a number of experts involved in this case, all of whom may or may not have the requisite expertise to give advice in any event.  But there have also been allegations of a variety of other things that gave rise to the question of the parties being examined by a psychiatrist, who ultimately found that there was no psychiatric disorder discernable.  Having regard to the discrete nature of the proceedings the future of the child is very much in the balance here.  I would not like it to be a case in which the Court would work off flimsy evidence or hearsay evidence.

5. This is a case where the next nine years of this child’s life are critical for her future adulthood. It seems to me that these are exceptional circumstances where the Court should really confine the parties to presenting the best evidence that is available, and in my view, in this case, the best evidence comes through direction from the Evidence Act. In making that determination I have taken into account that the evidence here is critical, not just what the parties say, but also how their respective experts view the responsibilities of the parents in relation to educational issues.

6. The other matters in such in section 69ZT(3) relate to the probative value of the evidence and, also, its nature. As I said earlier, this is critical evidence. The Court clearly has the powers to adjourn the proceedings at any stage if it turns out that some other course of an evidentiary nature is required. On that basis, with the consensus of all parties, the rules of evidence should apply, and, accordingly, I make an order under section 69ZT(3).

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 September 2016.

Associate: 

Date:  26 September 2016