Verdon and Verdon (No 2) - [2021] FamCA 258

FAMILY COURT OF AUSTRALIA

VERDON & VERDON (NO. 2)

[2021] FamCA 258

FAMILY LAW – RULINGS ON EVIDENCE – principle trial affidavits of the parties – major portions of each affidavit sought to be ruled inadmissible – explanation for rulings.

Evidence Act 1995 (Cth) s 50
Family Law Act 1975 (Cth) ss 79, 75(2)(o)
Family Law Rules 2004 Cth) r 15.09(1)(a)
Partnership Act 1958 (Cth) s 5

Australasian Annuities Pty Ltd (in liq) v Rowley Super Fund Pty Ltd [2015] VSCA 9
Beach Petroleum NL v Johnson (1993) 43 FCR 1
Bradshaw & McEwans Pty Ltd (1951) 217 ALR 1
Coco v A N Clark (Engineers) Ltd [1969] RPC 41
El Ajou v Dollar Land Holdings PLC [1994] 2 All ER 685
Girlock (Sales) Pty Limited & Hurrell (1982) 149 CLR 155
Holloway & McFeeters (1956) 94 CLR 470
Krakowski & Eurolynx Properties Limited (1995) 183 CLR 563
Luxton & Vines (1952) 85 CLR 352
Mehmet & Mehmet (No 2) (1987) FLC 91-801
Richard Evans & Co v Astley [1911] AC 647
Robb & Robb (1995) FLC 93-218
The Trustees (in Bankruptcy) & Cummins (2006) 227 CLR 278
Verdon & Verdon [2020] FamCA 824

APPLICANT

Mr Verdon

RESPONDENT

Ms Verdon

FILE NUMBER

MLC

12735

2017

DATE DELIVERED

28 April 2021

PLACE DELIVERED

Melbourne

PLACE HEARD

Melbourne

JUDGMENT OF

Wilson J

HEARING DATE

26, 27 and 28 April 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT

Mr A. Strum QC

SOLICITOR FOR THE APPLICANT

Accord Family Law

COUNSEL FOR THE RESPONDENT

Mr T. North SC

SOLICITOR FOR THE RESPONDENT

Schembri & Co Lawyers

Orders

Parts of the affidavit of Ms Verdon affirmed 15 March 2021, the affidavits of Mr Verdon affirmed 1 March 2021 and the affidavit of Mr Verdon filed 13 April 2021 are ruled inadmissible as provided hereunder.

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 Verdon & Verdon 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 MELBOURNE

FILE NUMBER: MLC 12735 of 2017

Mr Verdon

Applicant

And

Ms Verdon

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Prior to any evidence being called at the trial of this proceeding, it became necessary to rule on array of evidentiary objections each party has taken with the evidence of the other.
In broad overview, the nature of this litigation has been the subject of my consideration in the earlier reasons reported as Verdon & Verdon.[1] No useful purpose is served in reciting them again.
[1] [2020] FamCA 824.
The parties sought rulings on…

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 Verdon and Verdon (No 2)

Details

AGLC: Verdon and Verdon (No 2) [2021] FamCA 258
Case: [2021] FamCA 258
Decision Date

CaseChat Overview and Summary

This case concerned an application before the Family Court of Australia, with Mr Verdon as the applicant and Ms Verdon as the respondent. The dispute involved evidentiary objections raised by the applicant concerning the admissibility of substantial portions of the respondent's affidavit, affirmed on 15 March 2021, as well as parts of the applicant's own affidavits. The court was tasked with determining which parts of these affidavits were admissible evidence for the trial.

The primary legal issues before the court were whether specific statements within the affidavits constituted inadmissible hearsay, argument, speculation, or conclusions, rather than factual evidence. The court was required to apply the principles of evidence law, including the *Evidence Act 1995* (Cth) and the *Family Law Rules 2004* (Cth), to assess the admissibility of contested passages. This involved distinguishing between factual assertions and inadmissible opinion or argumentative content, and considering whether inferences could be drawn from admitted facts.

In its reasoning, the court meticulously examined each contested paragraph and sentence. It upheld objections where statements were clearly hearsay (e.g., the reason for a daughter's contract not being renewed) or constituted argument or conclusions. However, the court overruled objections where statements were considered factual assertions, even if expressed in general terms or requiring estimation (e.g., estimating the frequency of children staying with the respondent). The court also applied principles of inference, drawing conclusions from admitted facts to interpret ambiguous statements, and considered the common understanding of terms like "family business." Where objections were conceded by a party, the court ruled those portions inadmissible by agreement.

The outcome of the court's rulings was that significant portions of Ms Verdon's affidavit of 15 March 2021 were deemed inadmissible, along with parts of Mr Verdon's affidavits affirmed on 1 March 2021 and filed on 13 April 2021. The court ordered that marked-up versions of the affidavits, reflecting the deletions, be provided to the witnesses for adoption at trial.

Orders