Solomon & Todoro - [2021] FedCFamC2F 694

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Solomon & Todoro [2021] FedCFamC2F 694

File number: MLC 3211 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 23 November 2021

Catchwords: FAMILY LAW – admissibility of evidence – validity of the purported parenting plan – purported parenting agreement from family dispute resolution not admissible – Section 10J of Family Law Act 1975 (Cth) and section 131 of Evidence Act 1995 (Cth) are different schemes.

Legislation:
Family Law Act 1975 (Cth) ss 10J, 60CC, 63C, 69ZT

Evidence Act 1995 (Cth) s 131

Cases cited:
Bauer & Steggall [2011] FMCAfam 728

Knaus & Knaus [2010] FMCAfam 1370

Langer & Franke [2020] FCCA 1852

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Roux & Herman [2010] FMCAfam 1369

Trapp & Vonne [2009] FMCAfam 497

Waddell & Madden [2011] FMCAfam 1533

Division: Division 2 Family Law

Number of paragraphs: 30

Date of hearing: 23 November 2021

Place: Melbourne

Counsel for the Applicant: Ms S Fisken

Solicitor for the Applicant: KCL Law

Counsel for the Respondent: Mr N Kanarev

Solicitor for the Respondent: Le Brun & Associates
EX TEMPORE
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

This is the ruling and reasons in the matter of Solomon & Todoro relating to the admissibility of the document purporting to be a parenting agreement. Firstly, I want to thank counsel for their assistance on this point and diligence in scouring the law reports for available authorities. The matter comes before me on day 1 of the final hearing. The matter concerns the living arrangements for the children of the relationship, X and Y (“the children”), who are four and three years of age respectively. The mother, Ms Solomon, (“the Mother”) is 33 years old and the father, Mr Todoro, (“the Father”) is 34 years old (collectively known as “the parents”). The parents disagree about the living arrangements for X and Y, and the trial is proceeding. The proceedings had been issued in March 2021, and interim orders were made on 14 July 2021 partly by consent and partly by the Court.
On 14 July 2021 the matter was listed for a final hearing on Tuesday, 22 November 2021. Included in those trial directions were directions for the parties to file outlines of case. On 19 November 2021, but early in the morning, the Mother's lawyers filed an outline of case that included objections to evidence relating to the Father’s trial affidavit filed on 10 November 2021. When the matter came on before me counsel agreed that I should deal with those objections first. In the course of submissions, it became apparent that the Mother objected to references to and the use of a document that the Father had attached or annexed to his trial affidavit. In this case I had permitted the parties to rely on material filed earlier, and the Father relied upon an affidavit filed early in the proceedings which annexed the same document.
OBJECTION TO EVIDENCE: SECTION 10J OF THE ACT

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Solomon & Todoro

Details

AGLC: Solomon & Todoro [2021] FedCFamC2F 694
Case: [2021] FedCFamC2F 694
Decision Date: 23 November 2021

CaseChat Overview and Summary

Solomon and Todoro were the parties in this family law matter, which was brought before the Family Court of Australia. The dispute involved the admissibility of a purported parenting plan that arose from a family dispute resolution process. The crux of the matter was whether this purported plan, which was sought to be introduced as evidence, could be admitted under the law. The court had to determine the extent to which the purported plan could be used in the proceedings and whether it was valid under the relevant legislative provisions.

The legal issues before the court revolved around the interpretation and application of sections 10J of the Family Law Act 1975 and section 131 of the Evidence Act 1995. Specifically, the court needed to ascertain whether the purported parenting plan could be admitted as evidence and if there were any limitations or exceptions to its admissibility. The court also had to consider the distinction between the two statutory provisions and their respective scopes.

The court found that the purported parenting plan was not admissible as evidence. It concluded that section 10J of the Family Law Act and section 131 of the Evidence Act operate under different schemes, and therefore, the protections and limitations of one do not necessarily apply to the other. The court emphasised that the statutory provisions must be interpreted and applied in accordance with their specific contexts and purposes. As a result, the court ruled that the purported parenting plan could not be used as evidence in the proceedings. This decision underscores the importance of understanding the distinct legal frameworks that govern family law and evidence in Australia.

No specific final orders were detailed in the excerpt, but it can be inferred that the court’s ruling on the admissibility of the evidence would have implications for the overall proceedings regarding the parenting arrangement.

Orders