Hearsay account as to mothers alcohol use given little weight

Children – Father’s hearsay account of housekeeper’s statements as to mother’s alcohol use admitted but given little weight as that evidence was not adduced from that potential witness

In Mabart & Haselden [2012] FamCA 793 (18 September 2012) the father’s affidavit contained statements alleged to have been made by the mother’s housekeeper as to excessive alcohol consumption by the mother. Rees J said at paras 92-94:

“The father relied, primarily, on hearsay evidence of statements made by Ms E, the housekeeper who is employed by the mother. Counsel for the mother objected to those portions of the father’s affidavit but, because this matter proceeds under Division 12A of [Part VII of] the Family Law Act 1975 (Cth) [principles for conducting child-related proceedings, including s 69ZT(1) which provides that Part 3.2 of the Evidence Act 1995 (Cth) as to hearsay evidence does not apply in such proceedings and s 69ZT(2) as to the court’s discretion to give “such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1)”], the relevant portions of the father’s affidavit were admitted into evidence. The issue therefore is what weight should be given to the hearsay allegations in relation to the mother’s consumption of alcohol.

The father had raised similar allegations in his affidavit of 29 February 2012. When the matter came before the Court for directions on 30 March 2012, the father indicated that he proposed to rely upon affidavits by himself and his partner, and that he proposed to issue a subpoena to the housekeeper, Ms E.

No such subpoena was issued and Ms E did not appear in Court to give evidence. In circumstances where the allegations are of a serious nature, and are material to the father’s case, I must assume that the failure to call the witness, either by affidavit or by subpoena, must have been because her evidence would not have assisted the father’s case. The mother and her witnesses deny the assertions which were put to them on the basis of the hearsay evidence. There was nothing in the manner in which they gave their evidence or in the nature of their evidence which was in any way unbelievable or not credible. I prefer the evidence of those persons who came to court and gave evidence to the hearsay assertions upon which the father relies.”

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