Oa**Loughlin and Oa**Loughlin

[2007] FamCA 1624

FAMILY COURT OF AUSTRALIA

O'LOUGHLIN & O’LOUGHLIN [2007] FamCA 1624

FAMILY LAW – EVIDENCE – Affidavit of mother of husband’s first wife deposing to domestic violence incidents between husband and his first wife – Wife’s counsel seeking to tender evidence on the basis of relevance – Family report writer relied on observations of mother and later replicated in her affidavit – Report writer having spoken to wife’s mother then using that in providing a report does not make the evidence relevant – Only way for evidence to be admitted is pursuant to s97(1) Evidence Act  as tendency evidence – Discussion of whether the evidence of significant probative value – Consideration of factors to take into account in assessing probative value – Evidence of mother of husband’s first wife does not have significant probative value – Evidence not admissible

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth) s 97

WK & SR (1997) FLR 592

Phillips & The Queen (2006) 225 CLR 303

APPLICANT: Mr O’Loughlin

RESPONDENT: Ms O’Loughlin

INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

FILE NUMBER: TVF 329 of 2005

DATE DELIVERED: 30 May 2007

PLACE DELIVERED: Cairns

JUDGMENT OF: Strickland J

HEARING DATE: 30 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Willis

SOLICITOR FOR THE APPLICANT: Williams Graham Carman

COUNSEL FOR THE RESPONDENT: Mrs Pack SC

SOLICITOR FOR THE RESPONDENT: Cope Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Benson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone

Orders

1. That the requirement of formal notice being given to rely on tendency evidence pursuant to Section 97(1)(a) of the Evidence Act 1995 (Cth) be dispensed with.

2. That paragraphs 9 to 24 inclusive of the affidavit of Mrs M filed on 20 April 2007 be struck out.

3. That leave be given to the wife to amend her Amended Response filed on 17 January 2007 by adding the following paragraph 19:

   “19.i) Pursuant to Section 117 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of the Child support Agency made on 7 February 2007 with respect to the child […] born […] July 2005 and that for the period from the date of these orders to 25 July 2023 the annual rate of child support be set at $7,800.00 (being the equivalent of $150.00 per week).

   ii)Pursuant to Section 124 of the Child Support (Assessment) Act 1989, the husband shall pay to the wife a fixed sum by way of capitalized child maintenance which shall be calculated at the rate of $150.00 per week for the period from the date of these orders to 25 July 2023.

   or in the alternative

   ii)The annual rate of child support payable by the husband to the wife shall increase from 1 July each year in accordance with variations in the Consumer Price Index (weighted average for all cities).”

IT IS NOTED that publication of this judgment under the pseudonym O’Loughlin & O’Loughlin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVF329 of 2005

MR O’LOUGHLIN

Applicant

And

MS O’LOUGHLIN

Respondent

EX TEMPORE REASONS

1. In this matter I have dispensed with the requirement for notice pursuant to Section 97(1)(a) of the Evidence Act 1995 (Cth) to be given to allow the wife in these proceedings to seek to rely on tendency evidence. The tendency evidence is contained in the affidavit of Mrs M, filed on 20 April 2007, and in particular where Mrs M deposes to her observations and her knowledge of matters relating to the relationship between her late daughter and the husband in these proceedings. 

2. Her late daughter was J.  She was married to the husband in these proceedings, but unfortunately she passed away in a car accident in far north Queensland in 1997. 

3. In paragraphs 9 through 24 of her affidavit Mrs M deposes to the husband having sudden mood swings in which he would become aggressive and extremely angry with, and cruel to J, and then she recalls and sets out her knowledge of and observations made during the course of two incidents between the husband and J. 

4. Now, as with any evidence that is sought to be admitted in proceedings, it has to satisfy the test of relevance.  In this case it is submitted by the wife's senior counsel that this evidence is relevant because it was relied upon by the Family Report writer, Ms T, whose report is to be put before me as part of these proceedings.  That report is dated September 2006, and there Ms T records that she spoke to Mrs M and then sets out at pages 8 to 9 what Mrs M told her.  Substantially what is reported there is what Mrs M has now deposed to in her affidavit. 

5. Ms T uses Mrs M’s comments to highlight what she considered to be the inconsistencies between what she was being told by the husband and the wife.  What she says in the end result about that is that it is important during the process of the trial to look at the statements being made and for a determination or finding to be made about that, given that an issue for Ms T is the wife’s allegations of domestic violence by the father. 

6. Now, in my view for Ms T to indicate that she has spoken to Mrs M, and for her then to use what Mrs M has said to her in the context of providing her report to this Court, does not make this evidence relevant.  As Mrs Willis has rightly pointed out, I am the trier of fact, not Ms T, and for Ms T to say, "look I've spoken to Mrs [M], I have taken on board what she has said, there are inconsistencies arising from what she said, and that is a matter that needs to be considered, and taken account of in the context of the issues in this case", does not make the evidence of Mrs M relevant.

7. In my view, the only way the evidence of Mrs M can be admitted is via Section 97 of the Evidence Act. In other words, on the basis that it is tendency evidence. Section 97(1), which details the tendency rule, provides that:

   “Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:

   a) The party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence.”

   Now I have dealt with that, or;

   “b) The Court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.”

8. In simple terms what the mother is saying is that this evidence of Mrs M has significant probative value and should be admitted under the tendency rule.  The father says otherwise, and says it does not have such significant probative value, and therefore it should not be admitted. 

9. I have been referred to a number of authorities by both Counsel, and in particular a Full Court decision of this Court in WK & SR (1997) 22 FLR 592. In that case the Full Court provided its view at the time of the appropriate test to be applied when considering the relevance and probative value of similar fact evidence in civil proceedings.

10. Additionally, I have been referred to a relatively recent High Court case of PHILLIPS & THE QUEEN (2006) 225 CLR 303. That was a criminal case, but Mrs Willis has taken me to paragraph 51 to 54 inclusive of the reasons for judgment and says that I can apply the principles referred to there by the High Court in determining whether Section 97(1)(b) is satisfied, namely whether the evidence does or does not have significant probative value.

11. Mrs Pack SC, for the wife, has provided me with an extract from a publication called “The New Evidence”, and that provides a commentary on Section 97 which Mrs Pack relies upon.

12. As far as I am concerned it is all very well to refer me to cases such as PHILLIPS & THE QUEEN, and WK & SR, but they can really only be a guide to how I should determine this issue.  The position with the Evidence Act is that it is a code and questions of admissibility under that Act should not be approached by way of the common law.  If Parliament had intended to enact the common law it would have done so.  Thus my first and last port of call is the terms of the Section itself. 

13. Looking at the terms of Section 97(1)(b), the evidence must have significant probative value to be admitted. As Mrs Pack has rightly pointed out, “probative value” is defined in the dictionary to the Evidence Act and that definition is:

    “Probative value of evidence means the extent to which the evidence could rationally effect the assessment of the probability of the existence of the fact in issue.”

14. Now there is no definition of “significant”, but it has been held that significant means something more then mere relevance, but something less than a substantial degree of relevance.  Significant means “important”, or “of consequence”. 

15. In this case, to repeat, the evidence of Mrs M is of her observations of interaction between her late daughter and the husband, and in particular refers to two incidents.  What the wife then wants to do is to suggest that that evidence is relevant as tending to show that the husband in these proceedings has conducted himself in the same way as he did with his previous wife, many years ago, in his interactions with her. 

16. In my view, that evidence of Mrs M does not have significant probative value within the meaning of Section 97(1)(b). It seems to me that the factors to be taken into account in assessing the probative value of that evidence, includes such things as the cogency of the evidence, the strength of the inference that can be drawn from the evidence as to the tendency of the person to act or think in a particular way, and the extent to which that tendency increases the likelihood that a fact in issue did or did not occur. Further, the strength of the tendency inference can be affected by such factors as the number of occasions, the particular conduct relied upon, the time gaps between them, the degree of similarity between the conduct on the various occasions, and the degree of similarity of the circumstances in which the conduct took place.

17. It seems to me that it is drawing a long bow indeed to suggest that two specific incidents, many years ago, of the nature deposed to by Mrs M, have the necessary similarity, or the degree of similarity, necessary to allow the tendency rule to operate, such that that evidence is relevant to the evidence that is presented in this case, as to the interactions between the husband and the wife. 

18. Even if it is described in the way that the High Court did in PHILLIPS & THE QUEEN, namely there is nothing exceptional, the similarities were not striking, and there is nothing unusual, they are the sorts of things which in my view when looking at the evidence here, simply do not provide the significant probative value that is required under Section 97(1)(b).

I certify that the preceding 18 numbered paragraphs are a true copy of the reasons herein of the Honourable Justice Strickland.

Associate

30 May 2007