AUSTIN & AUSTIN

[2013] FamCA 10

FAMILY COURT OF AUSTRALIA

AUSTIN & AUSTIN [2013] FamCA 10

FAMILY LAW - EVIDENCE – the question of whether s 69ZT(3) of the Family Law Act 1975 (Cth) should be invoked and the provisions of the Evidence Act 1995 (Cth) be applied

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

APPLICANT: Mr Austin

RESPONDENT: Ms Austin

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 11598 of 2011

DATE DELIVERED: 25 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nehmy

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Ms Carter

SOLICITOR FOR THE RESPONDENT: Barbayannis Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

IT IS ORDERED THAT

1. The provisions of the Evidence Act 1995 (Cth) be applied to the proceedings in accordance with s 69ZT(3) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Austin & Austin 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 MELBOURNE

FILE NUMBER: MLC 11598  of 2011

Mr Austin

Applicant

And

Ms Austin

Respondent

REASONS FOR JUDGMENT  

1. This matter was listed for the first day of hearing before me on 18 January 2013. The matter has been set down for a trial before me on 15 July 2013 and I have made directions for the preparation of the matter for trial. The proceedings are in the Magellan list of cases. During the hearing I raised with Counsel for the father, Counsel for the mother and Counsel for the Independent Children’s Lawyer the question of whether s 69ZT(1) should apply or whether the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s 69ZT(1). The position of all parties was that in this case the provisions of the Evidence Act should apply and I agree.

2. In order to apply all or any of the provisions of the Evidence Act which by virtue of s 69ZT(1) do not apply the court must be satisfied that the circumstances are “exceptional” and in determining whether the circumstances are “exceptional” must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order to give a direction in relation to the evidence and any other matters the Court considers relevant.

3. In these proceedings both the father and the mother seek sole parental responsibility for their now three year old daughter and that she live with them and spend time with the other save and except that the mother’s application proposes that the husband’s sister and his cousin should be in substantial attendance on an ongoing basis when she is spending time with the father. The parties also seek orders for property settlement.

4. The father and the mother separated in July 2011. The mother deposes that as a result of her concerns about the father’s behaviour he did not spend time with his daughter for some months post separation. She said those concerns arose after the father told her that he had been aroused by the child on several occasions and that he considered this to be normal. The mother also alleges that the child has asked both she and her mother for a massage whilst pointing to her genital region. The first of these reported incidents occurred when the child was 18 months old. The mother’s concerns were first brought to the father’s attention when he was served with her application for an intervention order on 27 July 2011 on both her behalf and on behalf of the child.

5. By the time the mother applied for an intervention order she had already taken the child to her general practitioner for a swab of her vulva, taken her for a paediatric assessment, consulted Dr R at Gatehouse Centre, consulted Ms B, taken the child for a check up by a maternal health nurse, and taken her to Ms C, a psychologist on two occasions, all with respect to the allegations of abuse. After the mother applied for an intervention order she also consulted Ms J at SECASA and reported the allegations of abuse to the Police.

6. As a result of the allegations made by the mother in August 2011 the father attended upon Dr K for a psychosexual assessment. Dr K concludes that, in his opinion, there is no evidence to suggest that the father “..presents as a person who is a risk for sexual offending.”  In February 2012 the father, the mother and the child attended upon Ms H, a Family Consultant at the Court for the preparation of a s11F report. Ms H reported that there were no objective indicators which would support the father’s time with the child requiring ongoing supervision. Dr K provided an addendum to her report in March 2012 which confirms the results of his earlier assessment.

7. In March 2012 Senior Registrar FitzGibbon ordered that both the father and the mother be psychiatrically assessed by Dr N who concluded that the father was not someone “..who poses a risk to his daughter.”  He also concluded that “Despite an absence of evidence and the lack of substantiation in regard to the disclosures and opinions such as those of [Ms H], [Dr K], [Dr R]”  the mother “remains adamantly convinced that her daughter has been abused. Her inability to move from this was a feature of the assessment.”

8. It is in this context that the mother puts her case that the father should not spend any time alone with the child. For his part the father instead of seeking orders that he spend time with the child now says that the mother has exposed, and in the face of her strongly held views, will continue to expose the child to psychological and emotional harm and that she should live with him. This will require findings not only in relation to whether the allegations are such that there is an unacceptable risk of harm to this child but also as to basis for and the reasonableness of the mother’s concerns about the father’s behaviour and the risk he poses to the child in the event that findings are made that he does not pose such a risk.

9. It will also be necessary to determine whether the presumption of equal shared parental responsibility should apply. Whether the presumption should apply will depend upon whether there are reasonable grounds to believe that the child has been abused. Even in the absence of findings that there are reasonable grounds to believe that the child has been abused the presumption may be rebutted if it is determined not to be in the child’s best interests. Determining those best interests will involve amongst other things a consideration of the need to protect the child from abuse and the capacity of the father and the mother to provide for the emotional needs of the child.

10. The Magellan List is a list which is for the determination of cases in which there are allegations of sexual abuse and it is certainly not the case that just because a case happens to be in the Magellan List that that case can be said to be “exceptional”. In this case however the allegations of sexual abuse are likely to be a significant issue at the trial and pivotal to the ultimate outcome. There is also extensive expert evidence which will, in varying degrees, ultimately depend upon the factual evidence. If that factual evidence is unreliable then it follows axiomatically that the expert evidence dependent upon unreliable factual evidence may be similarly unreliable.  

11. The parties’ respective proposals are a world apart and the potential impact of these proceedings on the lives of both the parties and the child is significant. The High Court has made it clear that findings in relation to sexual abuse should not be made lightly and in my view there is a very real risk that findings made on the basis of evidence which would except for s 69ZT(1) be inadmissible would be unreliable.

12. I have considered the question of the probative value of the evidence however I have some difficulty with this concept. In my view it is to be expected that there will be questions with respect to the probative value of evidence which would except for s 69ZT(1) be inadmissible. I have also had regard to the last of the matters which must be taken into account however the powers of the Court to adjourn the hearing or give a direction in relation to the evidence does not seem to be relevant in circumstances where unless s 69ZT(3) applies the evidence the rules of evidence referred to in s 69ZT(1) do not apply.

13. The importance of the evidence in this case and the significance of the outcome lead me to conclude that the circumstances in this case are “exceptional” and that the otherwise excluded provisions of the Evidence Act should apply.

14. I am conscious that the parties have already filed their trial affidavits. Although I do not want to put them to any unnecessary and added expense they will, in light of my orders, need to assess the admissibility of that evidence. I have also made orders for the filing of an updating affidavit in anticipation of the trial. If there are evidentiary issues that cannot be addressed in the context of the parties’ respective updating affidavits the parties have leave to approach the registrar responsible for the management of the Court file to vary the obligations under these orders to ensure readiness for trial.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 25 January 2013.

Associate: 

Date:  25 January 2013