TELFORD & TELFORD

[2020] FamCA 310

FAMILY COURT OF AUSTRALIA

TELFORD & TELFORD [2020] FamCA 310

FAMILY LAW – EVIDENCE – Where the mother seeks to rely on further affidavit evidence – whether the mother was granted leave in part

APPLICANT: Ms Telford

RESPONDENT: Mr Telford

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1050 of 2016

DATE DELIVERED: 18 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Harper J

HEARING DATE: 18 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: L & M Law

COUNSEL FOR THE RESPONDENT: Ms Goodchild

SOLICITOR FOR THE RESPONDENT: Ark Law Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Schroder

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

Orders

1. Paragraphs [1] through to [57] of the Applicant Mother’s Affidavit affirmed and filed on 14 February 2020 be read and the balance shall not be read as part of the evidence in these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Telford & Telford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1050 of 2016

Ms Telford

Applicant

And

Mr Telford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

1. In proceedings SYC1050/2016, the Applicant filed and served a further Affidavit outside of Court directions on the 14 February 2020 (“the Affidavit”) which was the Friday before the commencement of Final Hearing.

2. On Monday 17 February 2020, Counsel for the Respondent who has recently been brought into the matter objected to the Court permitting the Applicant to read the evidence in the Affidavit. However, in relation to paragraphs [1] through to [57], Counsel for the Respondent considered that was material which was updating and did not point to any particular prejudice apart from lateness. I propose to allow those paragraphs.

3. The balance of the Affidavit, being paragraphs [58] to [100] are directly responsive to paragraphs in the Affidavit of the Respondent affirmed and filed on 28 January 2020.

4. The Respondent contends that this is material which should have been provided in chief in the Trial Affidavit of the Applicant and that in circumstances where there is no provision for an Affidavit in reply in directions made by the Court and in circumstances where the Affidavit was served on the last business day prior to the commencement of the hearing, the Respondent is not in a position to deal with the evidence in those paragraphs being [58] to [100].

5. I am satisfied the lateness of service and the consequential difficulties raised for the efficient conduct of the trial by permitting paragraphs [58] to [100] to be read outweigh the utility of the evidence in those paragraphs if they are permitted to form part of the evidentiary record.

6. Accordingly, I read paragraphs [1] through to [57] of the Affidavit of the 14 February 2020 and I decline to read the balance as part of the evidence in the proceedings.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 18 February 2020.

Associate:

Date:  1 May 2020