Packer and Fulton

[2012] FamCA 258

FAMILY COURT OF AUSTRALIA

PACKER & FULTON [2012] FamCA 258

FAMILY LAW - EVIDENCE - Admissibility - Where leave is sought to adduce further evidence-in-chief of the Applicant Mother regarding alleged sexualised behaviours of the subject child - Where no notice of an intention to lead such evidence has been given to the other parties - Where no such evidence has been foreshadowed in the prior evidence of the Applicant Mother despite the alleged behaviours occurring some time ago

APPLICANT: Ms Packer

RESPONDENT: Mr Fulton

FILE NUMBER: LEC 575 of 2007

DATE DELIVERED: 28 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 28 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Merkin

SOLICITOR FOR THE APPLICANT: Okamoto Lawyers

SOLICITOR FOR THE RESPONDENT: Stephen Tester & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Lismore

Orders

1. The Applicant’s request for leave to adduce further evidence orally in relation to alleged sexualised behaviour by the subject child is refused.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Packer & Fulton 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 BRISBANE

FILE NUMBER: LEC 575 of 2007

Ms Packer

Applicant

And

Mr Fulton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. There is an application before me for leave to adduce oral evidence from the Applicant Mother in this case relating to alleged disturbing behaviours by the child, B, in what is said to be a “pattern” from the beginning of 2010 to the end of 2010.

2. The Mother having had ample opportunity to advance such evidence has not done so in any affidavit filed in the proceedings. Her daughter, who is a witness in the proceedings, has likewise provided an affidavit but I am informed by the Applicant’s Counsel that there is no reference to the subject alleged behaviour in that affidavit. There is no opportunity in these circumstances given the lateness of the notice that this alleged pattern of behaviour is said to have occurred for the Father, who is the Respondent in a case involving serious allegations against him, to test the veracity of the evidence now sought to be led. For example, one would have thought if there were such a pattern in existence, it might be relevant to know from school teachers or other independent adults dealing with B during the relevant period from the beginning of 2010 to the end of 2010 as to whether any such witness ever observed any kind of behaviour of that type.

3. Moreover, advancing such evidence at this stage has the potential to be damaging to the Applicant’s case in circumstances where it might be contended that the evidence is the product of recent invention.

4. In the circumstances, mainly for the reason that the Respondent Father would be fundamentally disadvantaged in this case by late evidence of such a kind, I refuse leave to the Applicant to adduce such further evidence orally.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 28 March 2012.

Associate: 

Date:  10 April 2012