SCHOREL & SCHOREL

[2020] FCCA 920

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHOREL & SCHOREL [2020] FCCA 920

Catchwords:
FAMILY LAW – Reasons in respect of evidentiary ruling.

Legislation:

Family Law Act 1975 (Cth), s.79

Evidence Act 1995 (Cth), s.55

Applicant: MR SCHOREL

Respondent: MS SCHOREL

File Number: SYC 8325 of 2015

Judgment of: Judge Obradovic

Hearing date: 4 March 2019

Date of Last Submission: 4 March 2019

Delivered at: Parramatta

Delivered on: 29 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Cummings

Solicitors for the Applicant: Walter & Elliott Family Lawyers

Counsel for the Respondent: Mr Lethbridge

Solicitors for the Respondent: Barkus Doolan

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 8325 of 2015

MR SCHOREL

Applicant

And

MS SCHOREL

Respondent

REASONS FOR JUDGMENT

1. At the commencement of the hearing, the Court heard objections to affidavits sought to be read in the proceedings.

2. The respondent objected to paragraph 43 of the applicant’s affidavit filed 21 December 2018, an objection the Court upheld and consequently that paragraph was struck out.

3. The respondent sought reasons in respect of that evidentiary ruling.

4. Proceedings brought pursuant to s.79 of the Family Law Act 1975 (Cth) are subject to the rules of evidence, and consequently, the Evidence Act 1995 (Cth) applies in respect of financial proceedings such as the present.

5. The Evidence Act makes it clear only evidence which is relevant is admissible, and evidence which is relevant is evidence that if it were accepted could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings[1].

   [1] Section 55

6. One of the facts in issue in the proceedings are the various contributions made by or on behalf of each of the parties to the proceedings.

7. In paragraph 43 of his affidavit filed 21 December 2018, the applicant purported to give evidence of his opinion as to what amount in interest the parties would have paid pursuant to a loan which was never applied for nor approved. The applicant purported to calculate the repayments which he says the parties would have paid pursuant to a $1,000,000 interest only residential home loan with a commercial third party lender for the period October 2009 to 6 December 2018. It was said to be based on interest rates of the Commonwealth Bank of Australia.

8. Firstly, it is not relevant to any contribution made by or on behalf of a party because there is no evidence that the parties would have taken out a $1,000,000 interest only residential loan per se, nor what terms might have been available to them with any particular lender, nor whether they would have satisfied the lender’s requirements for such a loan to be made. There is no evidence that the parties ever applied for a home loan with the Commonwealth Bank of Australia.

9. Secondly, the evidence relating to interest rates of the Commonwealth Bank of Australia is hearsay. The exception to the hearsay rule was not made out.

10. Thirdly, it is evidence of an opinion, and as such not admissible except if one of the exclusions to the opinion rule applies. The exceptions to the opinion rule were not made out.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate:

Date: 29 April 2020