Ralston and Bakker (No 3)

[2013] FamCA 1114

FAMILY COURT OF AUSTRALIA

RALSTON & BAKKER (NO 3) [2013] FamCA 1114

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Where the wife sought to rely on affidavit material sworn and filed since the matter was adjourned part heard in March 2013 – Where the Court considered the prejudice caused to the husband by the late filing and service of the affidavits and their admission into evidence – Where the Court allowed the wife to rely on two of the affidavits but declined to admit any further affidavits into evidence on the basis that they were filed too late and it would be prejudicial to the husband.

APPLICANT: Mr Ralston

RESPONDENT: Ms Bakker

FILE NUMBER: SYC 7826 of 2011

DATE DELIVERED: 2 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 2 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT: Mr Blackah

SOLICITOR FOR THE RESPONDENT: Archer Legal

Orders

1. Leave is granted to Ms Bakker (“the wife”) to rely on the following affidavits sworn and filed since the matter was part heard:

   (a)Affidavit of Ms O sworn on 24 June 2013, provided that Ms O will be available for cross-examination

   (b)       Affidavit of Dr V sworn on 20 August 2013.

2. The application of the wife to rely on any further affidavit evidence is otherwise dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ralston and Bakker 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 SYDNEY

FILE NUMBER: SYC 7826 of 2011

Mr Ralston

Applicant

And

Ms Bakker

Respondent

REASONS FOR JUDGMENT

1. This is an application before the Court by the wife to adduce further evidence. The wife seeks to rely on a number of affidavits filed contrary to direction made by the Court on 8 July 2013. It is asserted by those representing her that the affidavits bring matters up to date.

2. This matter has been listed for a hearing initially of one day. It is now proposed that it be two days. The Court is concerned that the matter can be resolved within the time; however, even that would be a matter that the Court might reconsider if it could be shown that there was fairness in permitting reliance upon those affidavits. 

3. The affidavit of Ms LK is, for example, put to the Court as being something of significance. It is put by Mr Batey that he has requested a report from Ms LK in relation to a number of matters, and that report has not been provided. In the circumstances, Counsel says it is unfair for that affidavit to be relied upon and the Court agrees.

4. There is an affidavit proposed by a nanny for the child (Ms O, “Nanny O”), who has enjoyed the confidence of both parties. Apparently that relates to the question of whether or not there has been some positive improvement in the child’s behaviour, having regard to his special problems.

5. The child was previously reported by the K Child Care Centre as improving, it seems, but the wife has removed the child from that centre and placed the child elsewhere.

6. It seems to me that it would be unfortunate if Ms O had to be cross-examined but, if she is to give evidence, she will have to be cross-examined. Given the support of both parties for Ms O, it seems to me it would place in jeopardy that relationship. However, I am prepared, if there is a factual issue in relation to the positive improvements, to permit the wife to rely on that affidavit.

7. A certain doctor (“Dr V”) has talked about blood tests done with respect to the child. Indeed, a “battery of tests” they are described by the father’s Counsel.  This child has been, in fact, prodded, investigated and discussed by a multiplicity of professionals, and it is understood that the doctor says that there is a slightly elevated level of arsenic in his blood.

8. That is a matter, no doubt, on which Dr S can also comment. I will permit Dr V to adduce evidence.

9. I decline to give permission for Ms P, the speech pathologist, to give evidence. It seems to me that there is enough evidence of the child’s behaviour in what has already been allowed.

10. The chiropractor (“Dr WN”) has, apparently, simply filed an affidavit saying that the child is better than he was and, in those circumstances, I disallow that affidavit.

11. In all the circumstances, the application of the wife is refused on the basis that, otherwise than as allowed, the affidavits are filed too late and it would be prejudicial to the husband. To meet that prejudice further adjournment of the case would be required at cost to the parties and there is already a wealth of evidence in any event on the issues sought to be dealt with by the affidavits.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 2 September 2013.

Associate 

Date: 2 September 2013