Toscani & Silva - [2024] FedCFamC2F 1657

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toscani & Silva [2024] FedCFamC2F 1657

File number(s): MLC 2305 of 2023

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 20 November 2024

Catchwords: FAMILY LAW – Parenting – Where one party seeks leave on first day of trial to rely on a therapist’s report – Where therapist’s report had not been filed on affidavit – Where parties had not previously identified dispute over admissibility of report – Where one party claims report is confidential – Where the affidavit and report be deemed admissible

Legislation:
Evidence Act 1995 (Cth) ss 55, 56, 135

Family Law Act 1975 (Cth) Part II Divisions 2 and 3, ss 69ZT

Cases cited:
Langford & Coleman (1993) FLC 92-346

Oberlin v Infeld [2021] FamCAFC 66

Rasheem & Rasheem [2024] FedCFamC1F 595

Division: Division 2 Family Law

Number of paragraphs: 42

Date of hearing: 23 September 2024

Place: Melbourne

Counsel for the Applicant: Ms Chia

Solicitor for the Applicant: Tfa Legal

Counsel for the Respondent: Ms Paull

Solicitor for the Respondent: Northcote Lawyers
ORDERS

MLC 2305 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR TOSCANI

Applicant

AND:
MS SILVA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT ORDERS THAT:
1.The affidavit of Ms B dated 23 September 2024, and the report dated 25 February 2024 annexed thereto be and are admissible as evidence in these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge O’Shannessy
RESERVED RULING ON EVIDENCE

On the first day of an intended 3-day hearing, with the issue not being addressed in either party’s outline of case or other notice of the controversy being provided to the Court, a party sought leave to file an affidavit from a therapist, Ms B. I heard argument that took up a large part of the first day of the trial and ruled that the impugned affidavit annexing a report was admissible and that leave to rely upon the affidavit should be permitted, and the impugned document was tendered as exhibit ‘F2 – 23 September 2024’. I reserved my reasons (there was no objection to that course) so as to get on with the…

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 Toscani & Silva

Details

AGLC: Toscani & Silva [2024] FedCFamC2F 1657
Case: [2024] FedCFamC2F 1657
Decision Date: 20 November 2024

CaseChat Overview and Summary

The matter before the court involved a parenting dispute between Mr Toscani and Ms Silva. The issue at hand was the admissibility of a therapist’s report that Mr Toscani sought to introduce on the first day of the trial. The report had not been filed on affidavit and was claimed to be confidential by Ms Silva, who opposed its use in the proceedings. The Federal Circuit and Family Court of Australia (Division 2) was tasked with determining whether the report could be admitted as evidence.

The legal issues the court needed to address were the proper procedure for admitting evidence on the first day of trial and the confidentiality of the therapist’s report. The court had to consider whether the report could be admitted despite not being filed on affidavit and whether it should be deemed confidential and thus inadmissible. The parties had not previously identified this dispute over the admissibility of the report, which complicated the proceedings.

The court concluded that the affidavit and report should be deemed admissible. Judge O'Shannessy determined that the report, although not filed on affidavit, contained relevant information that could assist in resolving the parenting dispute. The court found that the report was not confidential in the context of this case, allowing it to be admitted as evidence. This decision facilitated the court's ability to make an informed ruling on the parenting issues at hand.

The court ordered that the affidavit of Ms B dated 23 September 2024, and the report dated 25 February 2024 annexed thereto, be and are admissible as evidence in these proceedings. This order allowed the report to be considered in the determination of the parenting arrangements between Mr Toscani and Ms Silva.

Orders

Orders of the court

MLC 2305 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR TOSCANI

Applicant

AND:

MS SILVA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The affidavit of Ms B dated 23 September 2024, and the report dated 25 February 2024 annexed thereto be and are admissible as evidence in these proceedings.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 2305 of 2023
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	20 November 2024
Catchwords:	FAMILY LAW – Parenting – Where one party seeks leave on first day of trial to rely on a therapist’s report – Where therapist’s report had not been filed on affidavit – Where parties had not previously identified dispute over admissibility of report – Where one party claims report is confidential – Where the affidavit and report be deemed admissible
Legislation:	Evidence Act 1995 (Cth) ss 55, 56, 135 Family Law Act 1975 (Cth) Part II Divisions 2 and 3, ss 69ZT
Cases cited:	Langford & Coleman (1993) FLC 92-346 Oberlin v Infeld [2021] FamCAFC 66 Rasheem & Rasheem [2024] FedCFamC1F 595
Division:	Division 2 Family Law
Number of paragraphs:	42
Date of hearing:	23 September 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Chia
Solicitor for the Applicant:	Tfa Legal
Counsel for the Respondent:	Ms Paull
Solicitor for the Respondent:	Northcote Lawyers

MLC 2305 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR TOSCANI Applicant
AND:	MS SILVA Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	21 NOVEMBER 2024