Waverley and Labelle

[2019] FamCA 1028

FAMILY COURT OF AUSTRALIA

WAVERLEY & LABELLE [2019] FamCA 1028

FAMILY LAW – PARENTING – objections to evidence.
APPLICANT:	Mr Waverley

RESPONDENT: Ms Labelle

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 1021 of 2017

DATE DELIVERED: 26 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Sweet

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. In relation to the husband’s objections to evidence, being set out in Exhibit “H1”;-

   a)The first line of paragraph 70 of the wife’s affidavit sworn on 20 August 2019 be struck out.

   b)I reserve for consideration on the first day of trial the objections to paragraphs 71, pages 49-229 of exhibit “H”, pages 1-5 of exhibit “K” and pages 20-33 of exhibit “L” to the wife’s said affidavit;

   c)I disallow the objections to paragraphs 71 and 73 of the wife’s said affidavit.

2. In the event that the wife seeks to rely upon any relaxation or variation of the undertaking she has apparently given to the Supreme Court of New South Wales on … June 2014 in relation to documents extracted from a telephone and/or if she obtains permission of any court to make use of documents in proceedings in that court, she produce the evidence of such relaxation, variation or permission to the other parties prior to the commencement of the trial.

3. My reasons for decision this day be transcribed and when settled be placed on the Court file and a copy provided to the parties.

4. For the avoidance of doubt, any party to these proceedings may use my said reasons for decision in support of any application to a court for permission to use documents from proceedings in that court in these parenting proceedings before me.

5. For case management purposes, the matter is listed to a final hearing on 21 October 2019 at 10.00 am, estimated to take 4 days, and the Family Dispute Resolution Service (“FDRS”) mediation will occur in the week commencing 14 October 2019. In due course, the independent children's lawyer notify my Chambers of the date and time of the FDRS mediation and the matter will be listed in court before me at the conclusion of that mediation.

IT IS DIRECTED:

1. That the Objections to Evidence of the husband be marked Exhibit “H1” and remain on the Court file.

AND IT IS NOTED that the impact of s 102NA(2) of the Family Law Act 1975, in relation to personal cross examination by litigants in person, has been explained to the parties. Both parties conceded that the mandatory ban does not apply to them and did not seek for the Court to exercise its discretion to order the appointment of a lawyer under the cross examination scheme. Accordingly, the matter will proceed on the basis that both parties appear in person and will cross examine the other party personally and not through counsel.

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 Waverley & Labelle 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 1021 of 2017

MR WAVERLEY

Applicant

And

MS LABELLE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me to check that the matter is ready for trial.  It appears that each of the parents have filed their affidavits.  The family report, for which interviews have been conducted and concluded is apparently due for release next week. 

2. The husband has quite properly and commendably put down in writing his objections to evidence by the mother, and there are seven objections in total.  I mark his written objections to evidence Exhibit “H1” and direct that they remain on the Court file.  All objections relate to the mother’s affidavit of evidence-in-chief filed on 20 August 2019 and the voluminous annexures thereto.  Helpfully, the annexures are with the affidavit, which is some relief, and I notice that they are consecutively numbered. 

3. As to the first objection - the first four objections are that the material is defamatory, scandalous and relates to parties who are not part of these proceedings.  The first paragraph is 70 and related to the father’s father, or the paternal grandfather of the children B born in 2006 and C born in 2008.  The mother contends therein that she has personally witnessed the paternal grandfather slapping the children’s cousin across the face and then alleged conversations between herself and the father wherein the father complained about mistreatment by the paternal grandfather.

4. The first sentence is, to my mind, a matter of opinion that is so broad it cannot be justified, and I will strike out the first sentence.  As to the balance of the paragraph, I will leave that in, and it is a matter to which I will accord weight, but I do not say significant weight, in the proceedings. 

5. The next objection is to paragraph 71, and that relates to the paternal aunt, Ms BB, and an allegation by her that she advised the father to create evidence against the wife in the proceedings.  The wife refers to a document wherein it appears that the paternal aunt said it is good to create evidence in a case.  She does not say “create evidence falsely”, but “it’s good to create evidence in a case”. 

6. I would leave that in and disallow the objection; however, the father also says that the mother cannot use that document because she had previously given an undertaking in proceedings in the Supreme Court of New South Wales in the defamation list to destroy any such documents.  The mother’s response to that is that she obtained a variation or relaxation of the undertaking that she apparently gave in June 2014, a copy of which appears at pages 9 and 70 of the annexures to the affidavit of the husband sworn on 1 August 2019. 

7. My impression is that the wife is not in a position to respond by producing any documentary evidence about the relaxation or variation or release from the undertaking, neither has she approached the Court to seek to use documents from those court proceedings in these Court proceedings. 

8. I make it clear that the general prohibition against using documents from one set of Court proceedings in another Court proceeding relates to documents brought into existence or exchanged for the purpose of the proceedings.  The purpose of the prohibition is to ensure that parties to litigation make full and frank disclosure without fear of documents so discovered being subsequently used to his/her disadvantage.

9. In relation to paragraph 72, that goes to the mother’s attitude, as does paragraph 73, and I will permit that to stay in.  I again say that it is not a matter to which I will necessarily accord significant weight; then again, I might, but it is not rendered inadmissible. 

10. Objections 5 to 7 all relate to documents which should have been destroyed in or are related to the Supreme Court proceedings New South Wales.  I will adjourn my consideration of those objections until the mother is in a position to respond, in particular to produce any relaxation of the undertaking that she appears to have given or has obtained permission from relevant Courts to be able to use documents brought into existence for the purpose of the proceedings.

11. Finally, when these reasons are transcribed, they will be available to the parties and may be relied upon by them in other Courts in support of any application for permission to use documents.  

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 26 September 2019.

Associate:

Date:  14 January 2020