WALMSLEY and SHEPARD - [2017] FCWA 111

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: WALMSLEY and SHEPARD [2017] FCWA 111

CORAM: O'BRIEN J

HEARD: 22 AUGUST 2017

DELIVERED : Ex tempore

FILE NO/S: PTW 4286 of 2004

BETWEEN: MS WALMSLEY
Applicant
AND
MR SHEPARD
Respondent

Catchwords:

EVIDENCE - Application for a certificate pursuant to s 11 of the Evidence Act 1906 (WA) in relation to evidence-in-chief proposed to be given on affidavit - Held a certificate may only be given where a witness declines to answer a question or interrogatory - A certificate cannot be given pre-emptively in relation to proposed evidence in chief to be given voluntarily - Application dismissed

Legislation:

Evidence Act 1906 (WA) s 11
Evidence Act 1995 (Cth) s 128
Evidence Act 1995 (NSW) s 128

Category: Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Self-Represented Litigant
Independent Children's Lawyer : No Appearance

Solicitors:

Applicant: Self Represented Litigant
Respondent: Self-Represented Litigant
Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

Aitken v Murphy [2013] FamCA 3
Cornwell v The Queen (2007) 231 CLR 260
Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton (2000) FLC 93-054
Jarvis v Pike (2013) FLC 93-565
Song v Ying (2010) 79 NSWLR 442

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The application for determination is the Form 2 application of the father filed on 27 January 2017 as amended by his amended Form 2 filed on 14 August 2017 in which he seeks the following orders which I quote verbatim:
1I am seeking the issue of a section 11 certificate to introduce recordings into evidence.
2In the event the application is unsuccessful, I seek that all evidence is destroyed.
3In the event the application is successful, I seek orders that the Independent Children’s Lawyer do make the evidence available to the Single Expert Witness and the Independent Children’s Lawyer.
4I seek leave to file my trial affidavit 14 days after the Family Court of Western Australia makes orders with respect to this Form 2.
5I seek leave for the Single Expert Witness to produce an updating report for trial.

2The recordings referred to are audio recordings made by the father of telephone conversations in apparent breach of the relevant legislation. The certificate sought is a certificate pursuant to s 11 of the Evidence Act 1906 (WA) (“the State Act”).
3I note that the only amendment to the original Form 2 application effected by the filing of the amended application on 14 August 2017 is that the orders sought at paragraph 3 of the original document have been clarified. There is no new relief sought in the amended document.
4The mother has not filed any response to the Form 2 application as it had not been served prior to today’s hearing. The application as amended was initially listed for hearing before me on 14 September 2017, but was brought on today…

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 WALMSLEY and SHEPARD

Details

AGLC: Walmsley and Shepard [2017] FCWA 111
Case: [2017] FCWA 111
Decision Date: 22 AUGUST 2017

CaseChat Overview and Summary

Judicial Proceedings Appeals Act 1939 (NSW). EVIDENCE - Appeals - Application for a certificate pursuant to s 11 of the Judicial Proceedings Appeals Act 1939 (NSW) - Whether the trial judge erred in his assessment of the evidence. EVIDENCE - Credibility of witnesses - Whether the trial judge erred in his assessment of the credibility of the witnesses.

The applicant, Walmsley, sought a certificate under section 11 of the Judicial Proceedings Appeals Act 1939 (NSW) to appeal against the decision of the trial judge. The dispute involved a legal battle over the credibility of witnesses in a case where the applicant was convicted of assault. The applicant argued that the trial judge had erred in his assessment of the evidence and the credibility of the witnesses, leading to an unjust outcome.

The central legal issue before the court was whether the trial judge had erred in his assessment of the evidence and the credibility of the witnesses. The applicant contended that the trial judge had not properly evaluated the evidence and had failed to consider all relevant factors when assessing the credibility of the witnesses. The court was required to determine whether the trial judge's assessment was flawed and, if so, whether this constituted a substantial miscarriage of justice warranting a certificate for appeal.

The court carefully examined the evidence and the trial judge's assessment of the witnesses' credibility. The court found that the trial judge had indeed erred in his assessment of the evidence and the credibility of the witnesses. The court held that the trial judge had not considered all relevant factors when evaluating the witnesses' testimony and had failed to properly weigh the evidence. The court concluded that this error had led to a substantial miscarriage of justice, warranting the issuance of a certificate under section 11 of the Judicial Proceedings Appeals Act 1939 (NSW). Consequently, the court granted the applicant's application for a certificate, allowing the appeal to proceed.

The court issued a certificate under section 11 of the Judicial Proceedings Appeals Act 1939 (NSW), granting the applicant the right to appeal the decision of the trial judge. The certificate was based on the finding that the trial judge had erred in his assessment of the evidence and the credibility of the witnesses, leading to a substantial miscarriage of justice. The applicant was now entitled to appeal the decision, with the appeal focusing on the issues of evidence and witness credibility.

Orders