Bardwell & Anor and Bardwell & Ors (No 2)

[2020] FamCA 499

FAMILY COURT OF AUSTRALIA

BARDWELL AND ANOR & BARDWELL AND ORS (NO. 2) [2020] FamCA 499

FAMILY LAW – PARENTING – where best interests of the child require that the matter not proceed to final determination at this stage – where release of family report was significantly delayed through no fault of the parties.

FAMILY LAW – EVIDENCE – where father issues subpoena to give evidence and informs the Court that an application will be made for the witness to be treated as “hostile” – where “unfavourable witnesses” are discussed in context of s 38 of the Evidence Act – where s 38 of the Evidence Act does not apply to these proceedings by virtue of s 69ZT – what is necessary under s 69ZT(3) to invoke application of rules of evidence and sections of the Evidence Act

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

APPLICANT: Ms Bardwell and Mr A Bardwell

1st RESPONDENT: Mr B Bardwell

2nd RESPONDENT: Ms Pauly

3rd RESPONDENT: Mr Kelson

INDEPENDENT CHILDREN’S LAWYER: Ms Webb

FILE NUMBER: MLC 330 of 2018

DATE DELIVERED: 3 June 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Community Legal Centre

COUNSEL FOR THE 1ST RESPONDENT: Not applicable

SOLICITOR FOR THE 1ST RESPONDENT: Trapski Family Law

COUNSEL FOR THE 2ND RESPONDENT: Not applicable

SOLICITOR FOR THE 2ND RESPONDENT: Macgregor Solicitors

COUNSEL FOR THE 3RD RESPONDENT: Ms Johnson

SOLICITOR FOR THE 3RD RESPONDENT: Wards Barristers & Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

1. The final hearing of this matter set down for 9 June 2020 be vacated and in lieu thereof this matter proceed as an interim parenting matter before me on 22 July 2020 estimated to take 2 to 3 days.

2. The final hearing of this matter be listed to 16 December 2020 with an estimate of 5 days.

3. This matter be listed for mention to follow immediately upon the conclusion of the Family Dispute Resolution Conference with Legal Aid, such date to be advised to my Chambers – ... – by the Independent Children’s Lawyer.

4. The time for compliance by the second respondent mother with paragraph 11(c) of the Order made on 19 February 2020 be extended to 16 June 2020.

5. The time for compliance by the Independent Children’s Lawyer with paragraph 11(e) of the Order made on 19 February 2020 be extended to 20 June 2020.

6. The time for compliance by all parties with paragraph 11(f) of the Order made on 19 February 2020 be extended to 1 July 2020.

IT IS DIRECTED:

1. That the Department of Health and Human Services documents be copied by my Chambers and sent to the Independent Children’s Lawyer for dissemination to all other practitioners for identification of documents to be included in a Court Book.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 330 of 2018

Ms Bardwell and Mr A Bardwell

Applicant

And

Mr B Bardwell

Respondent

And

Ms Pauly
Second Respondent

And

Mr Kelson
Third Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me at the request of the Independent Children’s Lawyer, Ms Webb, for an urgent mention.  In anticipation of a final hearing due to commence on 9 June, there was to be a Family Dispute Resolution Service (FDRS) mediation arranged through Legal Aid.

2. The Family Report in this matter was ordered to be prepared and released by not later than 25 May 2020.  It was, in fact, published by Child Dispute Services on or about 18 May 2020 and read by me on 19 May 2020.  Through a fault in the system, the report was not released to the parties until late in the afternoon of Friday 29 May 2020, which was only five working days prior to the commencement of the hearing.

3. This is a complex case with many nuances, and I have, today, expressed my regret to the practitioners and the parties that they did not receive the Family Report earlier than they did.  A consequence of the late release of the Family Report, there has been no FDRS mediation appointed by Legal Aid.

4. I am informed by the Independent Children’s Lawyer that, upon reading the Family Report, Legal Aid stated that they would allocate an FDRS event for this matter if it is to be treated as an interim matter, having regard to the comments in the Family Report about a psycho-sexual assessment of the second respondent mother and the ongoing monitoring of the third respondent step-father, Mr Kelson, for use of illicit substances or for substance abuse.

5. For my part, there is also considerable merit in seeing how any orders for interim time may play out over the next few months in terms of compliance.

6. Giving this matter further time before a final hearing is, in my view, consistent with the best interests of X.  That said, X is going to turn five years of age this year and will be starting school next year.  Therefore, Ms Trapski, for the father, seeks that there be a final hearing by the end of this year.

7. No party opposes the matter being dealt with on an interim basis at this juncture instead of being disposed of finally (to the extent that parenting orders are ever final).  I have allocated a date for hearing of that to commence on 22 July 2020, estimated to take two to three days.  However, I am optimistic of the parties being able to resolve interim arrangements at the FDRS mediation that they will shortly attend.  The matter will be returnable for me for mention immediately following the FDRS event, and I can make any orders reflecting that resolution or otherwise required to make the matter ready for trial – which will be a final hearing - in December.

8. I have extended the dates for filing of material by the second respondent mother, the ICL and for all parties in reply. 

9. An issue rises about the inspection and inclusion in a court book of documents produced by the Department of Health and Human Services.  Those documents were produced to the Registry electronically on a disc.  As currently advised, it seems most efficient for the Court to copy the documents from the disc, sequentially number the pages and then send them to the Independent Children’s Lawyer who should select what pages she requires be placed in a court book of documents and then distributes that single hard copy of all documents to each other practitioner in the proceedings.  There will necessarily have to be a degree of good will and cooperation about getting the documents between solicitors and solicitors identifying the documents they seek be included promptly.

10. There was a subpoena issued to Ms F, who is the daughter of the second and third respondents, and was the teenage friend of the father, when, at 14 years of age, the father was sexually abused by the mother and the child was conceived.  That is a subpoena to give evidence issued at the behest of the father.  That subpoena will no longer operate and, if necessary, a fresh subpoena will have to be issued for the December hearing.

11. The subpoena does not, in any way, guarantee that the evidence will be able to be adduced without a proof of evidence or an affidavit. It has been suggested in correspondence that Ms F is likely to be “a hostile witness” and the father’s practitioners will call her to give evidence but also seek to ask her leading questions in the nature of cross examination. I think the practitioners are referring to an “unfavourable witness” in the context of s 38 of the Evidence Act 1995 (Cth) (“Evidence Act”). 

12. Section 38 of the Evidence Act provides that a party who is called as a witness may, with leave of the Court, question the witness as though the party was cross-examining the witness about evidence given by the witness that is unfavourable to the party, or a matter of which the witness may reasonably be supposed to have knowledge and is not making a genuine attempt to give evidence, or where the witness had, at any time, made a prior inconsistent statement.

13. Section 38 appears in Part 2.1 of the Evidence Act. Section 69ZT(1) of the Family Law Act1975 (Cth) (“FLA”) provides that Divisions 3, 4 and 5, Part 2.1 which deal with general rules about giving evidence, examination-in-chief, re-examination and cross-examination other than paragraphs - other than sections 26, 30, 36, and 41 - do not apply to child related proceedings.

14. Section 38 is part of Division 4 of Part 2.1 of the Evidence Act, and, accordingly, unless I decide that it is appropriate that those provisions of the Evidence Act be applied, pursuant to section 69ZT(3) of the FLA, s 38 will not apply in these proceedings.

15. In order for me to make a determination under section 69ZT(3) of the FLA that s 38 of the Evidence Act should apply, I need:

    a)to be satisfied that circumstances are exceptional and

    b)take into account:

    i)the importance of the evidence in the proceedings;

    ii)the nature of the subject matter of the proceedings;

    iii)the probative value of the evidence.

16. In short, these are matters to which practitioners should give some thought well prior to the final hearing and be in a position to address at the commencement of the relevant hearing

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 June 2020.

Associate: 

Date:  19 June 2020