Copious amounts of “evidence” does not assist the Court

The Court recently commented that copious quantities of evidence does not equate to quality of proof of issues. It is very important to focus on what the issue is, what proof is required and to then test relevance, admissibility and weight to be given to such evidence.

Sargent & Selwyn (No.3) [2018] FCCA 2836 (4 October 2018)

Comments on the evidence

1. 1. 112. The copious amounts of material filed by the parties does not assist the Court in determining the issues in dispute. It is most unfortunate that both parties focused much of their material making complaints about the other party and on historical issues and issues that have no bearing on the current issues in dispute before the court.
      113. I made it clear at the commencement of the trial that the focus needs to be on the evidence that will assist the Court to determine what is in [X]’s best interests. Whilst some issues are important to the parties, not every issue needs to be explored.
      114. I have carefully considered the evidence and submissions. Due to the volume of material before the court, I do not propose to address every piece of evidence and each submission made, however in reaching my decision I have considered all of the evidence and submissions.
      115. In Vismay & Shaw [2014] FamCAFC 124 the Full Court of the Family Court stated at [45]:
           It is well accepted that a judge is not required to advert to every piece of evidence or every submission made in the course of the reasons per Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; U v U [2002] HCA 36; (2002) 211 CLR 238 at [80], per Gummow and Callinan JJ . The purpose of giving reasons for decision is to enable the parties to understand how the orders and decision were arrived at.
      116. In the appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
           “Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
           a) In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:

…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd[1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:

It is not the duty of the judge to decide every matter which is raised in argument.

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…

I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.”

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