Van Diemen and Van Diemen (No 3)

[2013] FamCA 775

FAMILY COURT OF AUSTRALIA

VAN DIEMEN & VAN DIEMEN (NO 3) [2013] FamCA 775

FAMILY LAW – RULING

Family Law Act 1975 (Cth)

APPLICANT: Ms Van Diemen

RESPONDENT: Mr Van Diemen

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8968 of 2011

DATE DELIVERED: 9 September 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dunlop

SOLICITOR FOR THE APPLICANT: David Stagg Tonkin & Company

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Arnold

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym <pseudonym> 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 MELBOURNE

FILE NUMBER:  MLC 8968 of 2011

Ms Van Diemen

Applicant

And

Mr Van Diemen

Respondent

INDEPENDENT CHILDREN’S LAWYER

RULING

1. This is a ruling in relation to evidence. As is well known, parties are told prior to the setting down for trial that they should ensure that evidence satisfies all of the tests in ss 55 and 56 of the Evidence Act 1995 (Cth), notwithstanding the amelioration of the evidentiary rule in Division 12A of the Family Law Act 1975 (Cth). Section 55 of the Evidence Act says that:

   Evidence that is relevant in a proceeding, is evidence that, if it were accepted, could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue in the proceedings.

2. Section 56 of the Act goes on then to say that:

   Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceedings.  Evidence that is not relevant in the proceedings, is not admissible.

3. I have heard a list of objections, most of which relate to comment and argument and relevance of the material set out in the various paragraphs of the husband’s affidavit filed on 1 April.  I uphold all of the objections except in relation to paragraph 87, which seems to me to be open to a question of determination as to weight.  Paragraph 112, I intend at this stage to treat that as an objection and denial of the wife’s assertion rather than simply a comment.

4. In relation to the evidence specifically of paragraph 200, I propose to rule that out on the basis that it seems to me that there is very significant weight being placed by the husband on this person, Ms D, and this Ms D has not been called.  It seems to me it is therefore inappropriate to find that has some relevance to these proceedings.  It is so insignificant in terms of weight that I propose to deem it irrelevant. 

5. In relation to the affidavit of Ms E, I am not prepared to rule that out at this stage.  There seems to be an enormous amount of comment and opinion in it.  No doubt cross-examination will elicit whether that is to be given any weight.  Similarly, Mr F, seems to wax lyrical about some of the things that he has seen over many years.  I am not sure that the relevance of that will become apparent until he is cross-examined and I apply the same issue to Ms G, whose evidence may become relevant.  That depends on whether she concedes that she went outside what she was instructed to do. 

6. In relation to Dr H, I propose to allow that evidence to remain on the basis that notwithstanding it looks very much like things were done outside of the rules, paragraph 1 of the orders made on 19 December 2012 permits it.  In relation to the objections to paragraphs 153, 468, 166, 8 and 9, I shall wait and see what the husband does about those in the morning and if he cannot convince me that those matters are not covered adequately in the current affidavit, I will not allow him to rely upon those old affidavits. 

I certify that the preceding six (6) paragraphs are a true copy of the ruling of the Honourable Justice Cronin delivered on 9 September 2013.

Associate: 

Date:  10 October 2013