BAINES & CRABAL
[2014] FCCA 868
•30 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAINES & CRABAL | [2014] FCCA 868 |
| Catchwords: EVIDENCE – Affidavits – observations on the lack of utility of “cheer squad affidavits”. |
| Legislation: Family Law Act 1975 (Cth), ss.11C, 11F, 60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 67J, 67Q, 67U, 68L, 69ZT Evidence Act 1995 (Cth), s.56 |
| Cases cited: Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Re K (1994) 17 Fam LR 537; FLC 92-461 |
| Applicant: | MR BAINES |
| Respondent: | MS CRABAL |
| File Number: | WOC 310 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 24 April 2014 |
| Date of Last Submission: | 24 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Kambouris |
| Solicitors for the Applicant: | Verekers lawyers |
| Solicitor for the Respondent: | Ms Tran |
| Solicitors for the Respondent: | Dribbus Kovacevic Lawyers |
ORDERS
UNTIL FURTHER ORDER
All earlier parenting Orders are suspended.
The Applicant and the Respondent are to have equal shared parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2010.
The children [X] and [Y] are to live with the Respondent Mother.
The children [X] and [Y] are to spend time with the Applicant Father as follows:
(a)From immediately after school or pre-school during school term time as the case may be each Wednesday until the commencement of school or pre-school on Friday;
(b)From 8:30 am until 5:00 pm each Sunday during school term time with the exception of Mothers’ Day;
(c)During the Winter and Spring school holidays as follows:
(i)From 6 July to 13 July 2014; and
(ii)From 29 September to 6 October 2014
(d)For a period of three hours on each of the children’s birthdays and on the Father’s birthday
For the purpose of changeovers between the parties that do not take place at the children’s school or pre-school the Father is to collect the children from the Mother or her nominee being a responsible adult person known to the Father at the McDonald’s Family Restaurant at [omitted] at the commencement of his time with the children and return the children to the Mother or her nominee at the conclusion of his time with the children.
Both the Applicant and the Respondent are restrained by injunction from consuming or otherwise administering to themselves any illicit drug including cannabis at any time that the children or either of them are in their care under these Orders or for twelve (12) hours beforehand.
Both parents are restrained by injunction from criticising or denigrating the other parent in the presence or hearing of the children or either of them or permitting any other person to do so.
The mother is restrained by injunction from leaving the children or either of them in the care of Mr E, Ms F or Ms S.
In accordance with the provisions of section 11F of the Family Law Act 1975 the Applicant and the Respondent are directed to attend a Child Dispute Conference with a Family Consultant at the Wollongong Registry of the Court on Wednesday 21 May 2014 at 9:00 am and as provided by section 11C of the Act the Conference is to be reportable.
In accordance with the provisions of section 68L of the Family Law Act 1975 the interests of the children [X] born [omitted] 2006 and [Y] born [omitted] 2010 are to be independently represented by a lawyer and for this purpose Legal Aid New South Wales is requested to arrange this representation.
Within fourteen (14) days of the date of this Order the parties are to forward to the Wollongong Legal Aid Office for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.
The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge or further leave of the Court.
Both parents must undertake by provision of urine screen in accordance with Australian/New Zealand standard 4308;2008 urinalysis drug screening to detect the presence of illicit drugs on at least one (1) occasion each month within twenty-four (24) hours of being requested to do so by the Independent Children’s Lawyer and provide a copy of the Certificate of the Results of the Urine Drug Analysis to the Independent Children’s Lawyer and the lawyer for the other parent within forty-eight (48) hours of receiving that Certificate.
The Application is adjourned for mention before Judge Altobelli at the Wollongong Registry of the Court on a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Baines & Crabal is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 310 of 2014
| MR BAINES |
Applicant
And
| MS CRABAL |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders brought by the Father of two children, a girl aged seven years and a boy aged four years, seeking that the children should live with him and spend time with their mother.
The Mother has filed a Response in which she seeks that the children should live with her and spend relatively short periods of time with their father during the daytime.
Each parent claims to have been the children’s primary caregiver. Each parent claims that the other parent has used denigrating and abusive language to them using foul language in the presence of the children. The Mother claims that the father uses illicit drugs, by smoking between 20 and 30 cones of marijuana a day. The Father claims that the Mother is bringing the children into contact with undesirable people.
The Father is not working. He receives a New Start allowance from Centrelink. The Mother works as a [omitted] three days a week. She deposed in her affidavit that her working days vary “but are usually Wednesday, Thursdays and Sundays”.[1]
[1] Affidavit of Ms Crabal 23.4.2014 at paragraph [101]
Each parent expresses concern about the other parent’s parenting ability. The Father deposed in his affidavit of 4th April 2014:
I love my children very much and want them returned to my care urgently as I fear for their safety and well-being in the care of their mother.[2]
[2] Affidavit of Mr Baines 4.4.2014 at [114]
The Mother deposed in her affidavit of 23rd April 2014:
I have concerns with the children spending prolonged periods of time with Mr Baines due to his continued drug use, inability to provide essentials such as food for the children and his inability to properly supervise the children when they are in his care.[3]
[3] Affidavit of Ms Crabal 23.4.2014 at [95]
Orders Sought
The Father commenced proceedings by filing an Application for parenting orders on 4th April 2014. In that Application he sought:
a)leave for substituted service on the Mother’s parents as he did not know where the Mother was living with the children;
b)that the children should live with him:
c)that the Mother return the children to him forthwith;
d)that a Recovery Order under the provisions of sections 67Q and 67U of the Family Law Act 1975 (Cth) should issue for the return of the children;
e)that a Location Order should issue under the provisions of section 67J of the Act;
f)that the Mother spend reasonable time with the children as agreed between the parties;
g)that the Mother should be restrained by injunction from bringing the children into contact or allowing them to be brought into contact with people named Mr E, Ms F and Ms S;
h)that the parties be restrained from abusing, insulting, belittling, rebuking or criticising the other party.
The Father also sought other incidental orders.
The Father’s Application was returnable on 11th April 2014. On that date both parties attended Court and were represented. The parties entered into interim Consent Orders providing that:
a)the child [Y] would spend time with the father from 11:00am each Thursday until 9:00am the following day;
b)the child [X] would spend time with the Father from after school on Thursday until the commencement of school on the following day;
c)both children would spend time with the father from 8:30am until 4:30pm each Saturday;
d)the parties were restrained from denigrating or any member of the other party’s family or household, discussing these proceedings and consuming more than 2 standard alcoholic beverages or any illicit drugs during any time the children were in their respective care or for 12 hours beforehand.
The Court noted an undertaking by the Mother that she would not leave the children in the care of Mr E, Ms F or Ms S.
The Mother was ordered to file a Response and an affidavit in support by 22nd April.
The Mother filed her Response and an affidavit on 23rd April.
In her Response, the Mother seeks interim orders providing that:
a)the parents should have equal shared parental responsibility for the children;
b)the children should live with her;
c)the Father would spend time with the children:
i)from 3:00pm until 8:30pm each Thursday;
ii)from 11:30am until 6:30pm each Sunday; and
iii)such other times as the parties agree;
iv)from 2:00pm on Christmas Day until 6:00pm on Boxing Day in odd numbered years[4];
v)from 6:00pm on Christmas Eve until Christmas Day in even numbered years; and
vi)from 9:00am until 6:00pm on Father’s Day in each year;
vii)for 3 hours on each child’s birthday;
viii)for similar times with the Mother on days of special significance;
ix)that the Father should submit to a random urinalysis test, presumably for the purpose of ascertaining whether he has used any illicit drug; and
x)other incidental orders.
[4] The Response was filed on 23 April 2014. The next odd numbered year is 2015. Christmas Day 2015 is 20 months away, which seems to be rather a long time for an interim parenting order to be in force.
Evidence and Submissions
The Father relied on the following affidavits:
a)the Father himself, sworn on 4th April 2014;
b)his sister, Ms C, sworn on 2nd April 2014; and
c)his sister, Ms H, sworn on 2nd April 2014.
The Mother relied on the following affidavits:
a)The mother herself, sworn on 23rd April 2014;
b)Her father, Mr C, sworn on 23rd April 2014; and
c)Ms D, a friend and neighbour of the mother, sworn on 23rd April 2014.
There were various subpoenaed documents tendered as evidence, including documents from the police and the Department of Family and Community Services which were not of particular significance at an interim hearing.
Ms Kambouris for the Father and Ms Tran for the Mother each submitted that the children should live with their particular client and spend time with the other parent.
Applications for Parenting Orders
The objects of Part VII of the Family Law Act 1975, which deals with children, are set out in s.60B(1) of the Act. The principles underlying those objects are set out in s.60B(2).
Section 60CA requires the Court to regard the best interests of the child as the paramount consideration, and s.60CC gives guidance as to how the Court should determine what children’s best interests may be.
Section 61DA of the Act requires the Court to apply the presumption that it is in children’s best interests for their parents to have equal shared parental responsibility for them, although this presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests to apply the presumption.
When the Court is making interim orders, as is the case here, s.61DA(3) provides that the presumption will apply unless the Court considers that it would not be appropriate in the circumstances.
If the Court does make an order for children’s parents to have equal shared parental responsibility for them, s.65DAA requires the Court to consider whether it would be in the children’s best interests AND reasonably practicable for the children to spend equal time with each parent. If the Court does not form that view, it must then consider whether it would be in the children’s best interests AND reasonably practicable for the children to spend substantial and significant time with each parent.
All of these matters have been considered, insofar as they are relevant.
Conclusions
This is an interim hearing, where there is little in the way of independent evidence other than the subpoenaed material tendered in evidence. In an interim hearing, where facts are disputed, the Court is unable to make conclusive findings of fact due to the truncated nature of the proceedings and the inability to test the parties’ evidence by way of cross-examination (see Goode & Goode[5]at [68]). In these circumstances, the Court will be reluctant to make any dramatic or radical changes to parenting arrangements as they appear to be in existence at the time of the hearing.
[5] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Each parent claims to have been the children’s primary caregiver. What is uncontroversial is that the Father left his employment on 22nd February 2013. He has been negotiating with Centrelink to provide evidence that he is the children’s primary carer.[6]
[6] Affidavit of Mr Baines 4.4.2014 at [20]
The parties separated under the one roof on 14th April 2013. After a series of incidents in March 2014 the Mother left the family home with the children and now resides in a three bedroom flat [omitted].
The parties’ daughter, [X], was born on [omitted] 2006. She attends [M] Public School. The parties’ son [Y] was born on [omitted] 2010. He attends [M] Pre-School.
The Father is not in employment. The Mother works at [omitted] on three days a week, usually Wednesday, Thursday and Sunday.
As this is an application for interim parenting orders, the Court would normally make an order that the parties should have equal shared parental responsibility for the children. Each party seeks an order for equal shared parental responsibility. Notwithstanding what appears to be a high level of conflict between the parties, I am satisfied that the parties should have equal shared parental responsibility for the children.
The question of parental responsibility will be considered afresh when the Court is making final orders, as s.61DB provides that the Court must disregard the allocation of parental responsibility made in an interim order when the Court is making a final parenting order.
I have considered the matters in s.65DAA, and I am not satisfied that it is either in the children’s best interests or reasonably practicable for the children to spend equal time with each parent.
However, each parent claims to be the one most concerned about the children’s welfare. The Father is not in employment. The Mother works three days a week. Whilst there is a shortage of independent evidence, as the parties have not had the benefit of a Child Dispute Conference with a Family Consultant under s.11F of the Act, nor is there at present an Independent Children’s Lawyer to assist the Court in ascertaining the children’s best interests, on what little evidence I have I am satisfied that an interim order should be made that would provide for the children to spend substantial and significant time with each parent. It would appear to be reasonably practicable and it should, on the current evidence, be in the children’s best interests.
I propose to order that the children should live with the Mother until further order and spend time with the Father. It is curious, and not satisfactorily explained, that the Mother consented to orders on 11th April that the children would spend overnight time with their father every Thursday night but has now resiled from that position in her Response filed on 23rd April, only twelve days later. There is no evidence that shows that anything untoward happened whilst the children were in their father’s care in that intervening period.
As the Mother works three days a week, it seems to be appropriate that the children should spend time in the care of their father whilst the Mother is working. He has expressed concern that the Mother leaves the children unattended; if the children are in his care whilst their mother is at work this should help to set his mind at rest.
The parties should attend a Child Dispute Conference, which should be reportable under s.11C of the Family Law Act 1975. The Memorandum that the Family Consult provides to the Court after a conference is not only admissible in proceedings under the Act but extremely valuable, not only to the Court but to the parties’ legal advisers. The first available appointment is on 21st May 2014.
The allegations of family violence, verbal abuse in the presence or hearing of the children, and the father’s use of marijuana, are all disturbing matters. The decision of the Full Court of the Family Court in Re K[7] provides valuable advice to a trial judge in deciding whether children’s interests should be independently represented by a lawyer. On balance, this appears to be such a case and I will order accordingly.
[7] (1994) 17 Fam LR 537; FLC 92-461
It should be made quite clear that it is not in children’s best interests for the parent who is supposed to be looking after them at the time to be affected by an illicit drug, and the Court has no sympathy for parents who choose to use marijuana, or cannabis, when their children are in their care. For the time being, at least, the parties can undertake regular urine drug screen tests at the direction of the Independent Children’s Lawyer to provide some assurance to the Court that they are not using drugs whilst they are looking after their children.
Affidavits
Apart from the affidavits of the parties themselves, the parties’ lawyers have obtained supporting affidavits from members of the parties’ friends and family members.
A practice has developed in parenting proceedings before this Court filing affidavits of this type, often referred to colloquially as “cheer squad affidavits. These affidavits are often short on facts but replete with supportive opinions, so that they read more like character references than statements of fact.
These affidavits are often justified by reference to s.69ZT of the Family Law Act 1975, provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings. There is a mistaken view amongst some practitioners that the law of evidence does not apply at all in parenting proceedings. This is a serious error.
Section 69ZT provides that certain Divisions of Part 2.1 of the Evidence Act 1995, Parts 2.2 and 2.3, and Parts 3.2 to 3.8 inclusive do not apply. The section does not exclude the operation of the Evidence Act 1995 in its entirety.
The text book The Law of Affidavits[8] by John Levingston states at page 7:
In Australia, an affidavit is defined as a written statement made by a person which is sworn or affirmed before a person authorised to administer an oath or affirmation that the contents of the statement are true, as a substitute for oral evidence.
[8] The Federation Press, Sydney, 2013
An affidavit must contain statements of fact that are relevant the case of the party who relies on that affidavit. Relevance is the criterion for admissibility, because s.69ZT does not exclude the operation of s.56 of the Evidence Act 1995, which states quite simply:
(1)Except as otherwise provided by this Act, evidence that it relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
Whilst it is true that s.69ZT of the Family Law Act 1975 provides at paragraph (1)(c) that Parts 3.2 to Part 3.8, including Part 3.3 which applies to opinion, does not apply, this should not be taken to mean that a deponent to an affidavit can provide a commentary on the proceedings or set out his or her views on what orders the Court should make. It is equally true that the deponent should not set out in the affidavit his or her innermost thoughts about the situation or how he or she reacted emotionally when hearing about certain events.
Such matters cannot be relevant, and if they are not relevant they are not admissible.
As a general principle, a Court will not place a great deal of weight on an affidavit from a close family member giving a ringing endorsement of the Applicant’s or Respondent’s qualities as a parent. Such affidavits are about as useful as a defendant facing sentencing on a criminal charge relying on a character reference from his or her mother.
It is of no evidentiary value whatsoever to fill an affidavit from a relative with hearsay statements from the Applicant about his case, such as:
Mr Baines has disclosed to me that Ms Crabal’s immediate family did not treat Mr Baines with respect.[9]
Or:
At [Ms Crabal’s] sister’s wedding, Mr Baines was seated at the back table with all the children while every other adult was seated together. Mr Baines told me that he felt he was there as the baby sitter.[10]
[9] Affidavit of [name omitted] 2.4.2014 at paragraph [10]
[10] Ibid at [11]
Endorsements of a party’s qualities in general terms without any detail whatsoever are of little or no evidentiary value, for example:
I believe Mr Baines is able to care for the children full time. He has always been there for the children and I know that he loves, encourages and supports the children. I know that the children mean everything to Mr Baines.[11]
[11] Affidavit of Ms H 2.4.2014 at [10]
Documents speak for themselves. The contents of a letter cannot be introduced by statements such as:
Ms Crabal and Mr Baines showed me a letter that Mr Baines had received from his then employer [omitted], I recall the letter said…[12]
[12] Affidavit of Mr C 23.4.2014
Similarly, it is of no evidentiary value for a deponent to provide the Court with his or her innermost thoughts, such as “On a number of occasions I have being (sic) concerned about Mr Baines’s ability to care for the children” or “I would be concerned for the children’s wellbeing and safety if they were to return to live with Mr Baines”.[13]
[13] Ibid at [14] & [21]
Another deponent provided evidence of sorts about what she did not do by stating “Despite my observations I did not contact the Police, as I did not want Mr Baines to further verbally abuse Ms Crabal” or what she could not imagine:
I cannot imagine the trauma that this may have caused Ms Crabal and in particular the children…[14]
[14] Affidavit of Ms D 23.4.2014 at [13] & [18]
When drafting affidavits, practitioners should consider whether the evidence contained in the affidavit will actually add some strength to the case of their client. Evidence does not become stronger just because the party tells someone else who then faithfully repeats it all in an affidavit.
It should be clear that the opinion of an interested party about a situation is usually not relevant, and if evidence is not relevant it is not admissible. Irrelevant evidence will not be saved even by the most generous interpretation of s.69ZT of the Family Law Act 1975.
Orders to be made
The parties are to attend a Child Dispute Conference and an Independent Children’s Lawyer is to be appointed. The children will live with their mother until further order and will spend time with their father on days when their mother is at work. The parties will need to undergo drug screen analysis when directed by the Independent Children’s Lawyer and will not be affected by illicit drugs when the children are in their care. They will be ordered not to abuse each other in the presence or hearing of the children, because behaviour of that nature is distressing and disturbing to children and likely to harm them psychologically.
The mother previously gave an undertaking to the Court that she would not leave the children in the care of Mr E, Ms F or Ms S. I consider that an order should be made to that effect.
The matter will come back to Court for further directions after the Child Dispute Conference has taken place.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 29 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Injunction
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Procedural Fairness