Bartel and Schneider (No. 2)

[2012] FamCA 890

FAMILY COURT OF AUSTRALIA

BARTEL & SCHNEIDER (NO. 2) [2012] FamCA 890

FAMILY LAW – PRACTICE AND PROCEDURE - Evidence Act 1995 (Cth) to apply to the proceedings

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

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

APPLICANT: Mr Bartel

RESPONDENT: Ms Schmucker

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 4233 of 2008

DATE DELIVERED: 22 October 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 22 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Andrew Hill & Co

COUNSEL FOR THE RESPONDENT: Ms Merkin

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

1. That in accordance with s 69ZT(3) of the Family Law Act 1975 (Cth), the provisions of the Evidence Act 1995 (Cth) shall apply to these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bartel & Schmucker (No. 2) 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 4233  of 2008

Mr Bartel

Applicant

And

Ms Schmucker

Respondent

RULING

1. This is a preliminary ruling to which all parties consented but which, in my view, requires a formal order.

2. I am conducting a final parenting hearing between the parties where the allegations against the father concern issues of sexual abuse and/or impropriety on his part. The issues are controversial.

3. I raised s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) and whether its application should be applied. Initially counsel for the mother opposed its application submitting that this was not an exceptional case or one that this Court did not deal with on a daily basis. After some discussion, that position altered to one of agreement with the other parties.

4. Counsel for the father and the Independent Children’s Lawyer both submitted that this was a case where the rules of evidence should be applied and I agree. What briefly follows, are my reasons.

5. In a parenting case, to apply the evidentiary rules, the Court must be satisfied that the circumstances are exceptional. Section 69ZT requires a number of matters to be taken into account which include the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence and the powers of the court to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

6. Counsel for the mother has told me that a major issue will be family violence. It is apparently to be put that a lot of the mother’s decision-making processes were overborne by being affected by violence. Indeed, there is now an allegation of rape. In addition, there is a teenager in this case who has declined a relationship with her father and has made serious allegations of sexual impropriety against her father. Further, another child has recently made allegations of a different but equally serious nature.

7. Notwithstanding the question of whether or not a finding can or needs to be made, each of those allegations is very serious and has an impact on the appropriateness of a parent.

8. The respective applications seek orders that would, if made, have a significant impact on the relationship between the children and the parents. The mother seeks to have the father’s time with the two girls stopped and for his time with the boy supervised. The father seeks orders that the children live with him and that the mother have supervised time. Either of these situations would be markedly different from the original shared care arrangement that the children enjoyed. In addition, the mother seeks a finding that the father has abused the children and as part of her case, that he has sexually abused her throughout the relationship. Notwithstanding the legal issues that attend that sort of case, the Court is being invited at this stage to make those findings.

9. Counsel for the mother conceded that the Briginshaw standard would need to be applied in respect of those findings.

10. It will be seen therefore that the parties are all approaching the matter with a view to a radically different outcome to that which the current orders provide.

11. In her opening remarks, counsel for the mother also indicated a desire to call some expert evidence in relation to issues of sexual abuse and to rely upon extrinsic materials to establish the mother’s case. Those issues are yet to be determined but they may raise issues of the nature considered in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. That in particular gives rise to questions of what sort of evidence (and its reliability) underpins the opinions apparently proposed to be given.

12. The seriousness of the proposals of the parties including the Independent Children’s Lawyer and the nature of the proposed evidence to be tested and relied upon is a good indication that this is not the sort of “usual” case heard in this Court. In my view, it is exceptional.

13. Section 69ZT also contemplates the Court examining the probative value of the evidence. There is sometimes a fine line between what is relevant and what is not and hence what is admissible. In a serious case such as this, particularly where there is a dispute about family violence within a home which may not be independently corroborated, the rules of evidence provide a framework so that there is less doubt about what should be received and what should not.

14. Section 69ZT also permits the Court to give directions in respect of evidence so that to the extent that this ruling might be seen as restrictive, there is always the capacity of a party to apply to admit further evidence if it can be shown to be relevant.

15. For those reasons and because of the consensus of the parties, in accordance with s 69ZT(3) of the Act, the provisions of the Evidence Act1995 (Cth) shall apply.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 October 2012.

Associate: 

Date:  22 October 2012