Adams and Adams

[2014] FamCA 223

FAMILY COURT OF AUSTRALIA

ADAMS & ADAMS [2014] FamCA 223

FAMILY LAW – CHILDREN – Interim Orders – Application by mother for leave to adduce further evidence – use of transcript from criminal proceedings by counsel for the father during cross examination – mother sought to adduce further evidence from witness who was also complainant in criminal proceedings – relevant and probative evidence – prejudice to the father – leave granted – confined to allegations of sexual assault – provisions of Evidence Act 1995 (Cth) to apply.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 69ZN, 69ZT

AON Risk Services Australia Limited v  Australian National University (2009) 239 CLR 175

Australian Securities and Investments Competition v Rich (2006) 235 ALR 587
Urban Transport Authority of New South Wales v The Nweiser (1992) 28 NSWLR 471

APPLICANT: Ms Adams

RESPONDENT: Mr Adams

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Ms Lindsay

FILE NUMBER: ADC 4741 of 2010

DATE DELIVERED: 12 February 2014

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 12 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lee

SOLICITOR FOR THE APPLICANT: Degaris Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dillon

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

INDEPENDENT CHILDREN’S LAWYER:

Bersee Legal

Mrs Lindsay

Nicola Atchison

Orders

1. Leave be given for the witness Ms W to adduce evidence as to the detail, particularity and allegation in respect of matters of sexual assault that she alleges were undertaken by the father.

2. That the provisions of the Evidence Act 1995 (Cth) to apply to the evidence being given by Ms W, both in respect of the further examination-in-chief, but also in respect of those matters set out in her trial affidavit filed 25 November 2013.

3. Costs thrown away of the Independent Children’s Lawyer and of the father reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adams & Adams has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4741 of 2010

Ms Adams

Applicant

And

Mr Adams

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, at the conclusion of the evidence of the applicant mother comprising of her examination-in-chief principally by way of affidavit, her cross-examination by Mr Dillon and then some brief re-examination by her counsel Ms Lee, an application was made in respect of the evidence that is to be given by the next witness in the case, Ms W. 

2. Ms W is the adult daughter of the mother and her involvement in these proceedings in terms of the issues that ultimately the Court will need to consider is what might be described as integral. 

3. Without attempting to do an injustice to the case put by the mother, and  indeed the case put by the father, her case is to a significant degree, but not exclusively so, a case that says whatever concerns she had in relation to the father’s behaviour generally, insofar as it certainly relates to her and the allegation she makes, but also in respect of certain concerns she has about the possibility of the father acting abusively, both sexually and physically, in relation to the children S and L, that the issues and behaviours of the father in relation to the now adult child Ms W are matters which I need to hear about and bring to account in my decision.

4. The case has been prepared over a considerable period of time and to that extent trial preparation orders were made by me on 4 September 2013.  In a general sense, the proceedings have been prepared within a reasonable time consideration by each of the parties. 

5. The mother’s case is to be found in three documents, the first being her trial affidavit sworn on 18 October 2013, a later filed trial affidavit of Ms W sworn by her on 23 November 2013, and a recently tendered affidavit of Heidi Hancock, who is the mother’s solicitor, sworn on 28 January 2014 which document is really the vehicle to annex a psychological report prepared by Mr A.

6. The affidavit of Ms W sets out what I might describe as a mixture of allegations in respect of inappropriate behaviour by the father that are both general in some circumstances, but have some better particularity in others.  There is no controversy that various criminal charges were laid against the father.  They arise out of the allegations of Ms W that the father had engaged her in inappropriate sexual conduct from an early age and, indeed, on her case from a young age the father commenced to molest her and that he did so until she turned 16 years of age and ran away from home.

7. Arising out of that general allegation there were a number of particular allegations, the details of which are not known to me, but which are conceded formed the basis of various criminal charges laid against the father.  Some of the criminal proceedings also involved allegations made by the mother, but there is at least some better detail and particularity in respect of that issue because those matters are set out in the affidavit of the mother and, in particular, at paragraph 9.  The focus, however, is really in respect of the generality of the evidence of Ms W. 

8. At the commencement of the proceedings there was discussion, particularly with Ms Lee, as to the manner in which her case was to be presented.  It was made clear that notwithstanding everybody clearly understood that there had been criminal charges, that there had been proceedings and that, my summary, perhaps not necessarily accurate, that the father had been acquitted in respect of all counts, that it was not the mother’s position that the various allegations which comprised those criminal proceedings against the father, as alleged by Ms W, were to be run in this court and, accordingly, it was not the mother’s case that I would be asked to make a finding in relation to any particular set of circumstances save and except as may be necessary to form the view on the mother’s case that the father presented or presents an unacceptable risk to the children but, in particular, the child L, reflective of the age difference between the children.

9. The matter proceeded on that basis. There were rulings by me at the commencement of the proceedings in respect of the applicability of the rules of evidence and the interrelationship between section 69ZT of the Family Law Act 1975 (Cth) and the Evidence Act 1995 (Cth), and ultimately I determined that because the matter was not run with a focus upon particular incidents, certainly not those matters that form the criminal proceedings, that the only application for the rules of evidence, contrary to the provisions of section 69ZT, was, in fact, the allegation that the mother raises as set out in paragraph 9 of her affidavit.

10. During the course of the cross-examination of the mother there were matters put by Mr Dillon of counsel for the father that appear to have as their basis, or at least as their foundation, a transcript of proceedings in the District Court.  I am uncertain what were the nature of the charges in the District Court, do not know which charges relate to which particular court proceedings, nor what particular rulings were made. Accordingly, I do not know in what context the transcript that Mr Dillon used related to but it was apparent that he asked questions from transcript. 

11. There was an objection at the time he asked those questions. The objection seemed to be on the basis that he had access to the transcript but counsel for the mother and ICL did not.  In this case there had not been any request for discovery and that clearly discovery had not been made. I note that it is common in this court that discovery in parenting cases is a matter best honoured in the breach rather than the observance.

12. There was no attempt made to tender the transcript and to the extent that matters were put to a witness from the transcript by way of inconsistent statements, to the extent that there is an unfairness as was asserted, the only unfairness is in circumstances where the transcript was available to one party and not to the other.  True it could be said that there may be matters in re-examination which could only be determined by counsel wishing to re-examine, in this case Ms Lee, if she had access to the transcript.  I accept that that may be the case, but, of course, the rigour of cross-examination is not necessarily an exercise that strives to put things in a way that is comprehensive to both parties’ case.  It is, however, open and it is exactly the reason why re-examination has a focus in proceedings that a party wishing to re-examine has the ability to re-examine on the basis that the court is not getting the entire picture. 

13. I do not consider that there was any fundamental unfairness in terms of the questions that have emanated if, indeed, that is what happened, from transcript that was in the possession of the father.  It could not be said in this case that the criminal proceedings were unknown to the mother and the solicitors which she instructs.  It may be that the financial circumstances of the parties are such that transcript is difficult or hard to obtain.  I do not know.  I am not being directed to any subpoena in respect of the matter and notwithstanding that I have raised it with counsel as to whether in the lead-up to the preparation of this matter, and, in particular, the filing of trial affidavits, both by the mother in October 2013 and Ms W more recently in November of 2013, whether there was any request made for transcript from the other party or discovery of same.  I suspect, I cannot be certain, but I suspect that because the question has not been answered, that there was no request made. 

14. The implication is this, that it has been put to me that in some way the very existence of the transcript, let alone the fact that Mr Dillon used it for the purposes of cross-examination but not to tender, in some way creates a significant unfairness, not just an unfairness in respect of the mother, but an unfairness in respect of the evidence of Ms W.  I do not agree with that assertion.  I do not agree that there has been any unfairness. 

15. What I am prepared to accept, however, is that as the case has progressed, the mother, by her counsel, has come to a decision that the case in respect of the mother need to be put in a different way to the manner in which it has been presented;  that is, there needs to be, according to the mother’s counsel, now greater emphasis not on the generality of the allegations that Ms W makes, noting my remarks that I am uncertain how I was going to be assisted by her evidence, given the lack of specificity and the generality of it rather than because there is now some fundamental unfairness that needs to be the subject of answer.

16. Indeed, focus to date has been on the cross-examination of the mother.  She has given her evidence and an opportunity was given to Ms Lee to re-examine the mother on any area that she considered re-examination had a proper focus.  If that required a consideration of the transcript of the District Court proceedings, and I pause to note that there were suggestions put to me, both by counsel for the mother but also counsel for the Independent Children’s Lawyer, that in respect of some of the transcript to which the father was referring, there may have been other matters, other aspects, other issues that could or should properly be put in order to give the transcript context.

17. The point, however, I think, is missed, and that is this:  the transcript does not have, until it is tendered, and it is not being tendered, any status in terms of how it was used with the mother other than as something that enabled Mr Dillon to put certain propositions to the mother that had been put to her and also to Ms W in the District Court.  It is not that the document or the transcript necessarily stands for itself or that it goes to prove what was said because, of course, it was a matter for the mother to answer in the positive or the negative, but in any event, if there is a fundamental unfairness or at least perceived so in the manner in which the matter was approached, and that might arise from documents that the mother was not aware of or, indeed, it might arise from documents the father is not aware of when it is his turn, then the issue is one for re-examination.  There was no re-examination of the mother by Ms Lee in respect of any of these issues. 

18. Why I go into the matter in such detail is because it is my position that this application by Ms Lee must stand or fall on its merits in the sense that I do not consider it to be an application that has an inevitability about it arising out of the cross-examination of the father.  In fact, it is very much to the contrary.  I consider that the application has been brought by Ms Lee not because there has been some suggestion of ambush or that there has been some suggestion of unfairness or that Mr Dillon had an advantage that the mother did not have but, rather, I consider it more borne out of a recognition or a view adopted by Ms Lee that in some way her case, the mother’s case, need to be placed before the court in a fundamentally different fashion. 

19. Again, I emphasise that these proceedings in terms of the mother’s case arise from the affidavit material and not when parties finally get to this court.  It was an option irrespective of the criminal proceedings, irrespective of the existence of transcript that the mother’s case in terms of the evidence that she sought to adduce from Ms W could, if it was the manner in which she wished to adopt her case and the strategy with which she wished to proceed further, could have produced evidence that was fundamentally different.  She chose not to and it is a late event that the mother via her counsel now seeks to change the fundamental approach of her case. 

20. Accordingly, the issue then relates to an application by the mother for leave to adduce further evidence.  The further evidence that is sought to be adduced is, unfortunately, ill-defined and, perhaps, unfairly determined by me to be not well understood.  It was put to me by Ms Lee that there were two possibilities.  One possibility was that I would receive some part or all of the transcript of the District Court proceedings in respect of one or more of the hearings, and that in some way I would be able to use that evidence.  That would then become, in effect, the further examination-in-chief of Ms W and then the matter could proceed. 

21. By implication, although again it is not made clear, what is being suggested, I think, is that Ms W’s evidence now needs to be supplemented by her giving further evidence about what I assume to be each and every one of the allegations that was the support of a criminal charge being matters that were heard and determined in the criminal court.  That appears to be the position.  Obviously, I have no benchmark because I do not know what the charges were and I do not know what the particulars are, but that seems to be what is being suggested. 

22. In terms of how long that process would take, that is, to what extent that evidence would be given, Ms Lee was somewhat uncertain, but the suggestion that I have received or understood to be the case is that it could take a day, it could take longer than a day.  Of course, that is regrettable in a case that was clearly listed for a limited period of time with a reasonable apprehension based upon the affidavit material that was before the court, and I suggest that the affidavit material is not comprehensive and not necessarily complex, gave some reasonable prospects for this matter to be heard either in the time that is allowed or, perhaps, with some further extension.  So I think it is, again, not controversial that if Ms Lee’s application is accepted and upheld, the trial will extend by probably the better part of a day or, in fact, up to two days. 

23. I am not much interested in the approach that suggests I should simply receive the transcript.  The difficulty about that, of course, is that there is an interrelationship with the Evidence Act 1995 (Cth) (“Evidence Act”), as to how I deal with that. The issues in respect of the Evidence Act have been determined at least at a preliminary stage from the beginning of the proceedings and I think Ms Lee even on the high point of her case, concedes that the issue of the application of the Evidence Act would now have to be revisited. If I do that, one of the difficulties in simply receiving the transcript is that it does not assist me in terms of that transcript necessarily proving any aspect of those allegations. I think the exercise would be a difficult and barren one.

24. I am not in favour of the truncated approach which is to simply import some parts of the transcript from the District Court into this court. The second option is that I simply give leave for Ms Lee to adduce further evidence on behalf of the mother.

25. The authorities in respect of the circumstances in which leave to adduce evidence should be given, are well understood.  They are best set out in particular, the decisions of Urban Transport Authority of New South Wales v The Nweiser (1992) 28 NSWLR 471 and, in particular, the decision of the High Court in AON Risk Services Australia Limited v  Australian National University (2009) 239 CLR 175. The overarching principle is that to grant leave to adduce further evidence is an exercise of discretion, but must be guided and tempered by the interests of justice.

26. The wife has not closed her case and in terms of the test that I am to apply, or the factors that might be of importance, are matters also well expressed and summarised by Austin J in a decision of Australian Securities and Investments Competition v Rich (2006) 235 ALR 587 at 593. He sets out the following factors: the nature of the proceedings; whether the occasion for calling further evidence ought reasonably to have been foreseen; the importance of the issue on which the further evidence is sought to be adduced; the degree of relevance and probative value of the further evidence; the prejudice to the other party; the public interest in the timely conclusion of litigation; the explanation offered for not having called the evidence.

27. The proceedings are proceedings in respect of the parenting arrangements for the infant children but in reality, L.  In summary, is it in the child’s interests that there should be time spent between the father and L or does the father present, on the mother’s case, an unacceptable risk which would see those orders being the subject of very substantial supervision and condition or, indeed, as we now understand from counsel for the Independent Children’s Lawyer, an order that would see no time being spent between the father and L. 

28. I am also obliged to have proper regards to parties as set out in the Family Law Act 1975 (Cth) and, in particular, the principles for conducting child-related proceedings under section 69ZN. In particular, whilst, obviously I am obliged to try and deal with proceedings in the most efficacious way that I can, I am obliged to consider the needs of the child, that the proceedings will safeguard matters in respect of the child and to ensure the proceedings are conducted efficiently but without undue delay, legal formality, technicality and form. There must always be a balance in terms of the rigor of those principles which help to regulate a fair hearing, but in any event overarchingly the interests of these children but in particular L have to be given paramount consideration.

29. I am not impressed nor satisfied that the situation that the court now finds itself in and the application Ms Lee has made is a matter that could not have been foreseen.  Indeed, I consider it to be entirely foreseeable.  That is not to suggest that the course that is to be adopted by Ms Lee on behalf of the mother is either the right course or the wrong course, but to the extent that the solicitors preparing this matter were faced clearly with the consideration as to what court strategy they would adopt in the sense of whether the evidence from Ms W would be comprehensive in terms of detail of the allegations or whether it would be in the generality, as ultimately it was, was a matter that must have been in the forefront of their mind.  It could not have been a matter that has only become clear because of the reference, and I say peripherally, to transcript in the District Court in circumstances where the proceedings themselves were known and the very fact that Ms W gave evidence was also a fact presumably well-known to the mother.  In fact, her evidence is that it was well-known because there were family meetings and discussions at the conclusion of each of the various days in court. 

1. The evidence that is sought to be adduced, whilst I have not been complimentary of the solicitors in the sense of whether it could be foreseen or not, has to be considered objectively and the issue is whether it has a focus and a relevance in these proceedings.  Clearly, by the very nature of these reasons, I have suggested that there was an alternate course in respect of the preparation of the proceedings by the mother’s solicitors.  They chose not to, but the very fact that they could have adduced that evidence, if they had, it would have at first instance been likely to be admissible, subject, of course, to the normal consideration of material, but the topics would have been relevant, would have been proper and would have required the court to give them some consideration. 

2. So I consider that the evidence that is being sought to be adduced is important.  It has also a degree of relevance and probity.  It may be ultimately a barren exercise, it may not be one bearing substantial fruit in respect of the mother’s case.  I do not know.  That cannot be the test.  I do not know what the evidence is. 

3. I pause at that point to unfortunately embark upon a further criticism.  It is the normal course of events that where an application to adduce evidence is made the court but in particular other parties in the proceedings, have the ability to understand what that extra evidence is going to be, what are the topics, how is it going to be led, what other issues might flow from it.  We do not have that at this point and it is a matter that I do not consider is able to be answered easily by counsel for the mother on the basis that in some way the cross-examination of Mr Dillon has taken her or her client by surprise.  But it is relevant and it is likely if the evidence that Ms Lee intends to adduce from her client follows in a general sense, the submissions that she makes and that evidence is likely to be restricted to or contained in or related to the specific charges, then I suppose there is at least some ability to understand at least the basic tenor.  It is unsatisfactory, inappropriate and it detracts fundamentally from the manner in which the father is able to properly consider what case in this regard he has to meet. 

4. That, of course, brings into account the prejudice to the other party.  I will come back to that in a moment. 

5. I do not accept that there is any proper explanation for this evidence not being called.  I do not propose to go back through my reasons, but I consider that where we are at now is a position that is entirely or was entirely foreseeable and before any issue arose as to transcript, the existence of transcript or the use of it; that is, it arose and was crystallised immediately upon the swearing and the filing of the affidavit from Ms W and to an extent the earlier affidavit of the mother. 

6. I am also obliged to consider the public interest in a timely conclusion to the litigation.  That, however, is to some extent hamstrung by what is inevitable as of yesterday namely that these proceedings were unlikely to conclude in the time that was allowed this week, noting fairly to the parties, as I do, that an earlier intimation by me today was that I may need to devote some of the court time that has been set aside for this trial to other matters that have come up in my list tomorrow afternoon.  In any event, the amount of time that has been now spent in respect of the resolution of this aspect of the case has, I also think, further exacerbated the matter.  I have already indicated to counsel, and it was a matter of submission by Ms Lindsay, that maybe the matter should best be given consideration afresh in the week of 7 April. 

7. On balance, I am persuaded that I should allow the application of Ms Lee to adduce evidence, notwithstanding my very serious misgivings as to the nature and extent of the evidence, but that is a matter as to proceeds and as to what objection might be made if the evidence that is sought to be obtained from Ms W goes outside of what I would understand to be the fairly strict parameters of the matters that Ms Lee has foreshadowed. 

8. If that application has merit, and I have indicated that it does, then the issue is whether it has a larger and more significant focus in terms of the proceedings.  I raised with counsel the possibility that so fundamental might this evidence be, again, the difficulty is we do not know what the evidence will be, that it may render the trial nugatory and it may require the trial to, in fact, be abandoned and the process started again.  I put forward to counsel that there may be financial considerations to each of them, there may be issues relating to Legal Aid or legal funding, I do not know, but I heard no submission about it, so I assume that that would not necessarily create in and of itself a problem for each of the parties. 

9. The reason that would be raised is if there is a prejudice caused to the father.  I do not consider it is a matter of prejudice to the mother; it is a matter of prejudice to the father. 

10. Mr Dillon properly raises with me that, firstly, there would need to be a consideration of whether the Evidence Act should apply; secondly, that it is not simply a matter of the application of the Evidence Act because section 69ZT requires me to only put aside that section; that is, to allow the rules of evidence in circumstances that are exceptional and, moreover, the section also obliges me to consider forensically what part of the evidential and factual matrix the rules of evidence, if they are to be applied in circumstances that are exceptional, to what parts of the evidence they apply and, indeed, what parts of the Evidence Act will apply to particular parts of the evidence. Of course, the difficulty about that is that because I do not know and am not told what this new evidence is going to be, it is very difficult – in fact, it is almost impossible to make any order about that. Again, it is a problem of the mother’s making in terms of the preparation of her case. It is not a problem of the father’s making.

11. A second issue raised by Mr Dillon is that he is now prevented from putting matters to the mother that may arise out of the evidence that Ms W is to give and if he had known about that evidence, he may either put matters or may have put different matters to the mother and/or there may be other inquiries that he could have made.  I accept that they are difficulties, but they are not difficulties that are insurmountable. 

12. It seems that if I am of the view that the application of Ms Lee should be granted, then the next logical step is to understand what the evidence is and once that has been given, and ideally it should have been given by way of an affidavit, that is, perhaps a draft affidavit or some other document or statement which would have fixed and determined the parameter of that evidence, but we do not have that, then it is, of course, a matter that Mr Dillon and his client can consider, his instructing solicitor can review and a decision can be made as to whether that evidence takes the case against the father further and needs to be met and, if so, in what way or whether it does not take the case much further.

13. Importantly, the father had not yet given his evidence, so to the extent that it is likely that by the time this evidence is given, the proceedings will then be the subject of a further adjournment.  It seems to me that the father will have ample and proper opportunity to consider the evidence that Ms W will give and whether it is something that he is able to meet or not able to meet, either in terms of his evidence or other evidence that he needs to call, and, obviously, any application of that sort would be given some favourable consideration if it is founded in the proposed evidence. 

14. It is also unfortunately the case that if a fundamental unfairness is caused to the father’s case that he would have put things to the mother in cross-examination that he now seemingly is prevented from doing because the mother’s evidence is concluded, then I will entertain an application that the mother be recalled in order to put to her any matters that the father or the father’s counsel think needs properly to be put. 

15. So the first step, then, it seems to me, is that I will hear the evidence-in-chief of Ms W, that there will be leave for that evidence to be given strictly related to what Ms Lee tells me is the focus of her application which are the allegations, to the extent that she wants to put some or all of them, in respect of the criminal proceedings, and then when Mr Dillon is able to cross-examine the mother, and, again, it may be that that does not happen between the conclusion of these proceedings. When Mr Dillon seeks the accommodation of time to consider the matter, then that will, obviously, be accommodated.  As I have indicated, it is likely that he will be given an adjournment. 

16. A difficulty for Mr Dillon does arise in respect of when this matter can return to the court.  Whilst, obviously, further time will be required because this exercise will take, on Ms Lee’s case, at least a day, and possibly longer in terms of now the cross-examination of Ms W arising out of the new information when this matter comes back for consideration.  The person who is prejudiced by the delay is, of course, the father because he seeks an order that would see him spending time with L.  The mother resists that.  There is no order in place that sees L spending time with the father and, of course, why that is regrettable is that Mr Dillon tells me that he has commitments in another court. I will do the best that I can to accommodate all counsel, but there is only so much I can do before we get to a trial date or a resumption of this matter which is significantly later in the year at this stage if some of those earlier dates are not acceptable in June and then in August.

17. It seems to me that there has to be some significant rigor in terms of how this part of the proceedings will run and to that extent issues relating to the rules of evidence will need to be applied.  I am not certain nor satisfied that I understand the mother’s case in the sense of whether I am going to be asked to make a specific finding or whether I am going to be asked to make a general assessment of whether the father’s involvement with the child presents an unacceptable risk, but irrespective of that, because of the nature and manner in which we are now proceeding and that the focus of the proposed new evidence is directed toward those matters of allegation and complaint and charge, then it is proper that the provisions of the Evidence Act 1995 (Cth) should apply in respect of this part of the evidence, namely the evidence of Ms W.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 12 February 2014.

Associate: 

Date:  8 April 2014