BEAUMONT & BARNEY
[2014] FCCA 3125
•14 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUMONT & BARNEY | [2014] FCCA 3125 |
| Catchwords: FAMILY LAW – Costs – adjournment of final hearing sought and granted – failure to adduce any evidence in admissible form regarding pivotal issue –failure to make available and appropriate enquiries regarding evidence – trial unable to safely proceed on available evidence – respondent and independent children’s lawyer ordered to pay costs. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Makita & Sprowles (2001) 52 NSWLR 705 Johnson & Page [2007] FamCA 1235 Deacon & Castle [2013] FCCA 691 Bennett & Bennett (1991) FLC 92-191 Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812 B & B (1993) FLC 92-357 M & M [1988] HCA 68 |
| Applicant: | MR BEAUMONT |
| Respondent: | MS BARNEY |
| File Number: | AYC 374 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 14 November 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Albury |
| Delivered on: | 14 November 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Solicitors for the Respondent: | Mr Hall of Skinner & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Giacomo |
| Solicitors for the Independent Children’s Lawyer: | Cater & Blumer |
ORDERS
Adjourn the proceedings for further hearing on a part heard basis and by video-link between Parramatta and Albury to 10am 12-13 May 2015.
The parties and the Independent Children’s Lawyer shall forthwith do all things, sign all documents, give all instructions and consents necessary and attend such appointments and cause the children of the relationship to attend such appointments as are necessary to enable
Ms O to complete an updated or supplementary report pursuant to part 15 of the Federal Circuit Court Rules 2001 and with respect to same:(a)Ms O is requested to address the apparent misunderstanding as to the children’s knowledge of Mr Beaumont as their biological father (leading to a recommendation which would appear erroneous that the children receive counselling to apprise them of that reality of which they are already fully aware);
(b)To consider such further material as has already been and/or may be provided regarding suggested allegations or disclosures of sexual assault on the child [Z] and any change to recommendations which arise as a consequence of such further information; and
(c)Ms O is requested to complete her report and provide it to the Court for release if at all possible by 1 May 2015.
Each of the parties shall file and serve any amended or updated evidence upon which they seek to rely at trial no later than close of business 27 February 2015, such material to be confined to:
(a)Evidence in admissible form as to suggested disclosures by the child [Z] of sexual assaults occurring in or about September 2011; and
(b)Any events or circumstances which have arisen since the swearing of their trial affidavit.
The Respondent mother shall pay to the father or as his attorneys may direct a contribution towards his costs thrown away in the sum of $682.00 such sum to be paid within 21 days.
The Independent Children’s Lawyer shall pay to the father or as his attorneys may direct a contribution towards his costs thrown away in the sum of $341.00 such sum to be paid within 21 days.
Pursuant to both section 69ZW of the Family Law Act 1975 and section 368A of the Criminal Procedure Act 2009 (VIC) the Commissioner of Police of the Victorian Police Service and to the extent that it is necessary to ensure production, Detective Sergeant B badge number [omitted] (station Cobram/Shepparton) shall provide to this Court within 28 days any electronic or video recording of interviews conducted with the children [X] born [omitted] 2004, [Y] born [omitted] 2005 and [Z] born [omitted] 2006 or any of them, such interviews having been conducted in or about September and/or October 2011 together with any written transcripts of those interviews produced and with respect to same:
(a)Those interviews and/or transcripts may only be viewed or listened to by the legal representatives of the parties, the Independent Children’s Lawyer, the part 15 expert Ms O and the Applicant and Respondent (and in the case of the Applicant and Respondent they are to be present with their legal representatives if so viewing or listening to a recording or viewing a transcript);
(b)The material above is to be produced to this Registry (Albury Family Law Courts, 463 Kiewa Street, PO Box 914, Albury, 2640 NSW) no later than close of business 12 December 2014;
(c)At the conclusion of the proceedings and at the expiration of the Appeal period and absent any Appeal having been filed all material produced is to be returned to the Victorian Police Service; and
(d)I declare that I am satisfied that it is in the best interests of the above three children that the material sought to be produced is in fact produced and so that this Court can hear, determine and conclude proceedings with respect to the care, welfare and development of the children presently before the Court.
IT IS NOTED that publication of this judgment under the Beaumont & Barney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT ALBURY |
AYC 374 of 2013
| MR BEAUMONT |
Applicant
And
| MS BARNEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements for three children:
[X] born [in] 2004, 10 years of age;
[Y] born [in] 2005, nine years of age; and,
[Z] on [in] 2006, eight years of age.
The parties to the proceedings are the children’s parents being their father, Mr Beaumont, who is the Applicant and their mother,
Ms Barney, who is the Respondent.
Proposals of the parties
The proceedings have been on foot for some little time having been commenced by an Application Initiating Proceedings filed 8 October 2013. By that application Mr Beaumont sought orders with respect to his time with the children. He also sought orders that the parents have equal shared parental responsibility for the children and that the children live with their mother.
The father’s application as filed does not seek any specific order preferring instead to seek relief in the following terms:
The said children spend time and communicate with the applicant father as determined by this honourable court.
At the commencement of the trial the specific relief sought by the father was made clear. The father seeks orders for time to occur on a supervised basis. That arises in a number of contexts not all of which have yet been fully explored, but certainly recognising that which is expressed with respect to the children’s views as well as significant absence in time, the father not having seen these children now for something in the order of three years.
The mother by her Response filed 22 November 2013 sought an order for sole parental responsibility, sought an order in the same terms as the father that the children live with her, and in relation to the children’s relationship with the father sought an order in the following terms:
The applicant father is restrained from spending time with the children or contacting or approaching the mother.
Thus, the substantial issue is whether the father will spend any time with the children rather than a dispute focused upon simply quantifying time or terms and conditions upon which time might occur.
In the mother’s case there are a number of bases upon which it is suggested that no time should occur, perhaps, the most significant of which is a suggested allegation of sexual abuse perpetrated by the father upon the female child, [Z].
Allegations of abuse and evidence
This matter was listed to be heard over two days. Day one of the trial was significantly interrupted through pressures of work before the Court, thus the matter did not commence until after 4 pm, and with the intention that the matter would have at least 90 minutes to 2 hours of time and in the hope that at least the father’s cross-examination by the mother’s counsel would conclude.
It was agreed when the matter started at that late hour that the proceedings could not be completed within the two days which had been allocated. Most, if not all, of one day had already been lost. It was agreed that the matter would need to go over to a third day to complete the evidence of the Part 15 Expert and submissions.
The parties were in agreement that if they were able to get, as it were, a “good run” at the matter today that the matter would need only one further day. The Court had a full day available today all other business of the Court having been concluded. In light of that the originally agreed position could have been achieved with the proceedings going over to be completed on a part-heard basis with one further day.
During the father’s cross-examination questions were put and a line of questioning commenced regarding the suggested allegations of abuse. It is, accordingly, important to have some regard to the evidence that is presently before the Court in relation to abuse.
The mother’s trial Affidavit at paragraph 49 states:
On 25 December 2011 [Z] had been misbehaving and I sent her to her room. I went in later and said, “This is not like you. What’s going on? Has something happened?” At first she said “My friend told me to be naughty.” She later told me that “Mr Beaumont says rude stuff to us.” [Mr Beaumont being Mr Beaumont]. She went on to say “He swears.” And eventually she told me “He touches me down there” [emphasis added] When she said this I saw her put her hand between her legs over her clothes and in the R [sic] of her vagina. She went on to make further disclosure and give details about the incidents. I made a report to the police. On 28 September 2011 I made a statement to police. [Z] was also interviewed by the police at the Sexual Offences and Child Abuse Unit in Shepparton.
What also became clear upon an exploration of this area of the evidence and as a consequence of submissions by counsel for the parties and the Independent Children’s Lawyer is that all three children were, in fact, interviewed by the sexual offences unit. This is not mentioned in the mother’s Affidavit.
At paragraph 50 the mother states:
[Z] also disclosed to both of her pre-school teachers when they were talking about “stranger danger” at pre-school.
At paragraph 51, the mother refers to [Z] having “disclosed”. She also refers to the Police having commenced proceedings for and obtaining an intervention order. A final order was apparently made for a period of two years and which expired in October 2013. It is unclear whether Mr Beaumont participated in those proceedings although it would seem in all probability that he did not.
The mother at paragraph 53, again, refers to “[Z] first disclosed”. She gives some limited detail of a further conversation between she and [Z] in which [Z] is suggested to have said “He [presumably Mr Beaumont]…used to make me show him my bottom” and “He made me pull my pants down and bend over”.
At paragraph 55 it is made clear that [Z] received counselling for a time from a Ms W, a sexual assault counsellor.
At paragraph 56 reference is made to [Z]’s apparent reaction upon hearing the name of or reference to her father, Mr Beaumont.
At paragraph 57, there is again reference to “[Z] having disclosed”, and investigation of “allegations of sexual assault.”
One can reasonably infer that Mr Beaumont did not participate in the apprehended domestic violence proceedings. The mother makes clear that at the time of those proceedings the father was being “investigated”, she alleges, with respect to other crimes and was sent to jail.
The above would appear to be the totality of evidence in relation to that which is suggested as an allegation of sexual abuse of this child by the father. There is precious little that is admissible.
There is reference to “disclosure”. However, that is a conclusion or opinion not a statement of fact.
Any conversation that has occurred between the mother and the child is absent the affidavit, but for the limited portions to which I have referred. What is also curious with respect to that evidence, the primary paragraph of which is paragraph 49, is the statement emphasised above:
Eventually she told me.
There is nothing to indicate what conversation occurred before or after [Z] “eventually” told, nothing to indicate what was said, how long the conversation occurred, or what “eventually” is meant to infer, import or imply. It may well suggest that the evidence trail has been well and truly muddied through repeated questioning of the child in unsophisticated fashion including potentially leading questions, suggestive questions or otherwise. It may mean something entirely innocent. The Court simply cannot know because there is nothing in the evidence led by the mother which tells the Court.
I make clear, lest the mother feels that her concerns are discounted, her evidence (to the extent that it is admissible) is disbelieved or that the issue is dismissed as unimportant, that it is simply not so. An allegation of sexual abuse of a child is incredibly important and significant. Accordingly, one would anticipate, in light of section 140 of the Evidence Act 1995 (Cth), codifying as it does what is usually referred to as “the Briginshaw test”, that the evidence that would be led would be all the more detailed, all the more probative and all the more admissible to address the allegation. As the great and sadly departed Judicial Registrar Knibbs had often opined the mother’s case is, “long on allegation and short on evidence”.
The mother’s evidence is simply not acceptable.
The mother did not prepare her Affidavit. It was prepared by her attorneys. The mother has previously given a statement to Police. She makes that much clear in her Affidavit. Her statement has been produced to the Court in response to a subpoena, and one would envisage that the mother may well have a copy of it. Why it was not referred to, to refresh her memory and incorporate it, even if only through annexure to the Affidavit and its adoption on oath is completely unclear. That would have placed evidence before the Court which would have allowed the matter to have proceeded both yesterday and today and with the consequence that the matter would be adjourned for the one day that had previously been agreed so that the evidence of the Part 15 Expert could be taken and the matter concluded.
There will now be a delay. Delay would have occurred in any event, but is now an adjournment for two days of hearing rather than one.
The other concern that arises is with respect to the Part 15 Report. The parties prior to the matter commencing yesterday albeit at a late hour were agreed that:
a)The trial Affidavits of the parties had been provided to the Expert (they having been filed after release of the Report);
b)The Expert had considered them; and,
c)As a consequence of that consideration the Expert’s recommendations had varied significantly.
The Part 15 Report, as it is presently drafted, (having been completed on 11 June and released to the parties on the same date) recommends that the children spend what might be referred to in the care and protection jurisdiction as “identification contact” with their father. The Report states at page 40:
Provision should be made for the children to spend two to four supervised visits per year with Mr Beaumont for identification purposes, however, these contact sessions should not commence until after the family therapy has commenced and the children understand that Mr Beaumont is their biological father.
That recommendation is now changed so as to recommend no time occurring between the father and these children.
The above recommendation is also concerning in that it is prefaced on a recommendation for the children to be informed in family therapy that their biological father is Mr Beaumont, and that their step-father, Mr Barney, is not their biological father. That is in no way intended to be pejorative to Mr Barney. He clearly plays an important role in these children’s lives, and would be, at least, in the American terminology their “emotional father”. The children may well and in all probability do perceive Mr Barney as a father or parent. I do not wish to open the door of controversy regarding those who are included within such definitions, however, suffice to say that the children’s perception means that he is of real importance to them.
What is concerning about the recommendation, however, is the apparent miscomprehension or misunderstanding as to the children’s awareness of their paternity. The children are fully aware of who their father is. They do not need therapy to be informed that Mr Beaumont is their father. They are aware of it. They know it. In fact, they spent time with their father until 2011, and the latter part of 2011 at that. On that basis it is clear that when the children last saw their father, albeit that their time with him had been sporadic and irregular, they were aged seven, six, and in the case of [Z] the youngest, the subject of the abuse allegation, five years of age.
The mother’s evidence is very clear that the children are fully aware that Mr Beaumont is their father. That is also the evidence of
Mr Beaumont. The children in the interviews with the Expert did not give any suggestion that they believed Mr Barney to be their father or that their father was anyone other than Mr Beaumont. The recommendation is, at its very best, curious.
The real concern that now arises in light of the absence of admissible or probative evidence in relation to the suggested disclosures of sexual abuse is that the Report, in some detail, purports to canvass those allegations. Commencing at paragraph 109 of the Report (page 23), and under the heading, “Allegations of sexual abuse” the Expert sets out some pages of detailed discussion with respect to suggested abuse of [Z]. The information that is provided to the Expert or referred to as having been provided to her, although the sources of some information is not entirely clear, is not contained within any of the evidence filed by the parties, and importantly in the context of the allegations raised, does not appear in Ms Barney’s evidence.
When inquiry was raised (during the father’s limited cross-examination yesterday) as to whether any document was produced on subpoena that could be tendered to adduce admissible and probative evidence of the allegations of abuse it became apparent that the material required for that purpose, (i.e., the interviews or transcripts of interviews with the children and, in particular, [Z]) had not been produced to the Court. That is particularly troubling.
A subpoena for the production of records by Victorian Police had been served in February 2014 some 10 months ago. The subpoena called for the production of:
All criminal incident reports, COPS entries referred to as LEAP entries in Victoria, criminal records, files, records, documents, reports, assessments, written materials, notes, police statements, witness statements, notices of complaint, and all other information whatsoever concerning the parties.
The children are not named. That may well have been some part of the basis for difficulties in Victorian Police complying with the subpoena in the production of the electronically recorded interview with [Z], and/or her brothers or a transcript thereof, although, on the basis that the complaint clearly related to, as it were, to the parents that would not appear to be a particularly plausible explanation. Documents pursuant to that subpoena were to be produced to the Court by 20 February 2014. There is nothing to suggest that material was not produced by that date.
Upon an inspection earlier in the year it became apparent, at least to the Independent Children’s Lawyer that the interviews critical to the evidence in this case were not produced.
The Court is advised that in May 2014 the Independent Children’s Lawyer contacted the Subpoena Unit and the Sexual Assault Unit and requested that a copy of the subpoena be directed to the officer in charge of the investigation when it occurred in 2011 being a Detective Sergeant B. I make very clear that whilst Detective Sergeant B is specifically referred to in these Reasons it is not for the purpose of seeking to be critical of him. He is a Police Officer undertaking his duties and he is not responsible for answering subpoena.
It is suggested that as a consequence of those inquiries the Independent Children’s Lawyer was advised that the relevant CDs or DVDs containing the interviews could not be located. It is unclear from whom that advice came.
It is suggested that the Independent Children’s Lawyer undertook some endeavour to contact the principal interviewing officer of the children, a Sergeant E only to be advised that Sergeant E was no longer with the Police and she could not be found. It would not seem anything further occurred after that until overnight or this morning when contact was made by the mother’s solicitors with Detective Sergeant B who has indicated that the very DVDs critical to the evidence in this case are known by him to be held at the [omitted] Document and Destruction Storage Facility and can be obtained readily enough, and subject to address of the issue through order under the relevant State legislation being the Criminal Procedure Act 2009 (Victoria).
The Court will make orders today pursuant to section 69ZW of the Family Law Act 1975 and for abundant caution referencing the appropriate section of the Victorian legislation, namely section 368A, to seek to obtain and procure the very evidence that is required in this case. That will allow the proper conduct of the case and the effective and efficient disposal of the matter. It will also ensure that the evidential issues which are now so manifest are addressed, particularly the evidential issues that now potentially arise with respect to the Part 15 Report by reference to Makita & Sprowles (2001) 52 NSWLR 705.
It is concerning that an extensive Part 15 Report has been prepared without any first hand evidence of serious allegations being considered. It is not as though that evidence is unavailable. It is simply not placed before the Court.
The Expert enumerates the documents considered and sources of information considered (page 3 of the Report). Included therein is the suggestion that subpoenaed documents from Victorian Police had been considered, however, the documents considered clearly have not included the record of interview with young [Z], that which would be the most probative evidence addressing the suggested disclosure of abuse.
Without that interview, particularly as the mother’s evidence is absent any discussion or disclosure thereof, there is, in essence, nothing before the Court upon which an assessment could be made as to unacceptable risk.
It should also be noted that the Part 15 Expert, even seized with such knowledge as they had, largely imperfect, and from sources which are not probative, recommended at least supervised time between the children including [Z], the suggested victim of assault, and her father. That is so, notwithstanding, Ms Barney’s evidence as to the suggested significant trauma experienced by the child and reactivated for her on each occasion that her father is mentioned or referred to.
As I had remarked to the parties at the close of the case yesterday at approximately 6.40 pm the absence of evidence in relation to the allegation is so glaring and so manifest that if this were a criminal proceeding the father would be discharged, acquitted forthwith, and he would, in those circumstances, very likely have an entirely appropriate claim for compensation against the prosecuting authority. Short of that outcome and in light of the state of the evidence one would imagine a stay of prosecution being readily granted in light of the absence of evidence.
That is not to suggest that the allegation is dealt with in this Court in the same fashion as a criminal court. The considerations are remarkably different. The standard of proof is different, although not remarkably dissimilar. Section 140 of the Evidence Act 1995 makes clear that even though the case is determined on the balance of probabilities the standard is a sliding scale dependent upon the nature of the allegation, and the consequence of a finding.
The Court must also have regard to the myriad of considerations as regards unacceptable risk as set out and addressed in Johnson & Page [2007] FamCA 1235 and a line of similar authorities, and in that regard I incorporate the discussion of same commencing at paragraph 468 of Deacon & Castle [2013] FCCA 691:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
Having regard to those matters I am satisfied that one cannot proceed with the case on the evidence as it is. As this is not a criminal trial it is not an exercise of determining the father’s guilt or otherwise. It is an exercise of determining the children’s best interests taking account of all of the evidence including allegations suggested to found a finding of unacceptable risk. Accordingly, the children’s best interests, I am satisfied, could not, and would not be served by simply adopting that which would occur in a criminal trial of proceeding on the basis that there is no evidence and getting on with matters.
The children’s best interests are represented by the Independent Children’s Lawyer. The child’s best interests are the paramount and fundamental concern of the Court. The best interests of these children deserve better.
The matter could have proceeded if the evidence had been put before the Court in proper form by the person raising the allegation, i.e., the mother. Again, I do not wish Ms Barney to leave this Court feeling that I am criticising her. She is entitled to rely upon the advice and the assistance provided to her by her attorneys in drafting her material particularly when there is clearly evidence available which would assist in refreshing her memory or in placing that evidence properly before the Court, (i.e., her statement to Police). If that evidence had been before the Court and contained within her Affidavit things might have been different. They are not.
As a consequence of the adjournment of the proceedings and as the Expert has now indicated to the parties and the Independent Children’s Lawyer that her recommendations will change, the parties have agreed that the Expert should now complete an updated or supplementary report. That may well involve these children being interviewed, again. That is unfortunate, however, to ensure that the evidence has some integrity, and at this point there would be real concerns by reference to Makita & Sprowles as to the integrity of the Part 15 Report in light of the deficiencies in evidence which must manifestly undermine any expressed opinion, the re-interview of the children may well be necessary.
The case will require another two days of hearing. The matter was always going to be adjourned for a further day not necessarily as a consequence of any miss-estimate by the parties, but because of pressures of business before the Court and the non-availability of the Expert for cross‑examination at times that would fit within those limited periods that were available for the hearing of the matter on this circuit.
The difficulties with the evidence are compounded in that the mother’s case does not include or contain a Form 4 Notice of Risk.
The obligation to file a Notice of Risk is legislated and mandatory. It is not the Court being pernickety in requiring that it be filed. Parliament has determined that it is appropriate and must occur, when allegations are raised. So much is made very clear by the obligations established both for litigants and the Court by subdivision D of division 8 of part VII of the Act.
Whenever an allegation of abuse is made, (and in this case it is an allegation of sexual abuse investigated by the Police and in which it is suggested disclosures have been made by the child), a Notice must be filed. The Notice is predominantly for the assistance of the Court but is also of assistance to child welfare authorities to ensure that the allegation, if not already known to them, is properly investigated. I have no concern whatsoever that the Department is not aware of this allegation and has already addressed it.
The Form 4 is also of particular assistance to the Court. The obligations imposed by section 67ZBB headed, “Court to take prompt action in relation to allegations of child abuse or family violence” are triggered by the filing of a Notice. Indeed, and again, as remarked to counsel for the parties and the Independent Children’s Lawyer yesterday, if the Notice had been filed as required then on the first return date of these proceedings it is probable that the proceedings would have been transferred by the judge before the whom the matter came on that occasion to the Family Court of Australia for inclusion within the Magellan list. That would have been the most appropriate way for the matter to have proceeded. However, the judge before whom the matter came did not have the benefit or assistance of that which the legislation mandated she would have. Accordingly, that step was not considered and it was no fault of the Court. It is the fault of those who were then advising Ms Barney.
Ms Barney is entitled to rely upon her attorneys to assist her in discharging her obligations in the proceedings. Whilst the obligation to file a Form 4 is personal to the litigant when a litigant is represented I find it hard to be critical of her. She would not be expected to read each provision of part VII when she has legal advisers, albeit they were not the attorneys now retained by her.
The Court also has an obligation to take certain steps following the filing of a Notice and the raising of an allegation. That includes the important step of making procedural or interim orders to ensure that appropriate evidence about the allegation is obtained and as expeditiously as possible.
In these proceedings, which have been on foot now for 13 months, that evidence has not been obtained. The Court may have intervened to have addressed the deficiency of the parties and the Independent Children’s Lawyer if the Court had been properly appraised.
Costs
An application for costs is made by the father with respect to the day of trial today which is thrown away.
Those costs, if sought in accordance with schedule 1 of the Federal Circuit Court Rules 2001, would be substantial. They would, in fact, be something approaching three times the costs that are sought. The father is in receipt of a grant of Legal Aid and, accordingly, his counsel seeks only that which would in fact be expended by the Commission being a daily counsel fee of $930 plus GST totalling $1023. It is an entirely appropriate and frank concession made by counsel for the father of whom I would expect nothing else.
Costs are resisted by both the mother and the Independent Children’s Lawyer. The father makes the application for costs against the mother. The mother’s counsel in opposing the order has raised certain matters suggesting equal or contributing culpability to the absence of admissible, probative evidence in relation to the abuse allegations and, thus, I have proceeded to deal with that as, in effect, a third party joinder on the part of the mother in the event that the Court determines to exercise its discretion and, thus, submissions have been received by counsel for both parties and the Independent Children’s Lawyer.
Any application for costs is dealt with by reference to section 117 of the Act. Subsection (1) creates what is often referred to as the general rule, that each party shall bear his or her own costs. Subsection (1) of course, does not apply to the Independent Children’s Lawyer, not being a party to the proceedings (see Bennett & Bennett (1991) FLC 92-191).
Subsection (2) reserves a general discretion in the Court to make such order as to costs and security for costs as the Court considers just.
The Court must be satisfied that there is a justifying circumstance for departure from the general rule (for a discussion of same see, Re JJT & Ors; Ex Parte Victoria Legal Aid [1998] FLC 92-812).
Subsection (2A) sets out a non-exhaustive but prescribed list of considerations. I propose to deal with each of those briefly. Before doing so, however, I will deal with the submissions of the parties.
Submissions as to costs
The father’s counsel submits that today’s hearing is thrown away on the bases that:
a)The mother raised allegations of abuse and has done so in a form which is non-probative and, indeed, by and large inadmissible.
b)The mother was aware of the allegations and their importance. She must have been. They are profoundly significant and serious allegations and they were one of the bases, if not the predominant basis, for the appointment of a Part 15 Expert rather than preparation of a section 62G Report. It is to be noted, with respect to the preparation of that report, and indeed the addendum or supplementary report that will be ordered today, that the mother, who is not legally aided, has funded one half of the cost and will fund one half of the cost again. That is a relevant consideration that I will address as part of subsection (2A).
c)The mother’s evidence not being in order is the only basis upon which today’s trial is aborted.
d)The father, whilst he will not personally incur cost, will potentially be disadvantaged. He addresses in his Affidavit material that there has been real difficulty and delay in obtaining a grant of Legal Aid and that it was granted only some days prior to the required date of filing of his material. In that regard, I make very clear that one is in awe of the efforts made by the father’s attorney’s not only in dealing with the Commission, no doubt over quite some hours, to obtain funding but to then prepare his trial Affidavit in a very limited period of time. The father deposes that he was advised of a grant of Legal Aid to allow preparation for trial on 9 September. His trial affidavit is affirmed and filed on 18 September, only some nine days later.
In the Court’s experience whereby litigants rarely, if ever, comply with any interlocutory order for trial preparation, it is remarkable that the father’s attorneys, faced with the manifest difficulties they were, have attended to filing his material. The father’s material is somewhat late but not significantly and with perfectly appropriate explanation of the delay.
The father will now be required to rejoin negotiation with the Commission to obtain a further extension of aid for another two days.
The father’s counsel is entitled to be paid. He is here and ready to proceed.
The Applicant resists the adjournment of the proceedings but I am satisfied it is irresistible in the circumstances and that the child’s best interests could not be fully or properly served without it. If the matter were capable of conclusion today and the parties and Independent Children’s Lawyer had not been agreed from the outset that the matter would, for the circumstances described above, need to go over, my attitude towards adjournment may well have been significantly different.
As it is agreed and has been from the outset that the matter would need to go over for a further day to complete the evidence and submissions, I am satisfied that the prejudice that would be experienced in the matter being adjourned, as already envisaged is ameliorated. The matter will now be adjourned for a further two days rather than one day.
The difficulties for the father, even though he will not be paying his counsel from his own pocket, are not trivial. The financial difficulties of the Legal Aid Commission are well known. I refer to those difficulties as subsection (5) of section 117 does not apply to this determination. The Court is, of course, precluded from having any consideration of the funding arrangements for Independent Children’s Lawyers in making a determination of costs in favour of an Independent Children’s Lawyer.
The father is subject to Legal Aid funding which is limited, is capped and it is unclear how much of the cap is presently expended. The father may well find himself in the invidious position whereby the Commission will not extend funding and counsel will then be placed in the even more invidious position of determining whether they will, on a forced basis, continue in the matter without payment and in strident discharge of their obligations to the Court and justice or withdraw when the matter is part-heard. One would hope that dilemma would not arise. Its non-occurrence can certainly be assisted in its address through an order for costs.
The mother’s counsel opposes an order for costs being made and seeks that costs be reserved. That is put on a number of bases perhaps the most significant of which is that a determination would best be made when the matter is concluded and particularly when it can be accurately ascertained how much time was in fact lost.
The Court has no other business to deal with today but this case and, accordingly, the Court’s day is thrown away.
In seeking to redirect culpability, whether totally or partially, to the Independent Children’s Lawyer, submissions are put by the mother that the Independent Children’s Lawyer, those who issued the subpoena to the Victorian Police, was also fully aware that the material crucial to this case was not present.
The Independent Children’s Lawyer has given the chronology outlined above. They assert that they have pursued compliance and did nothing further as they were advised that the DVDs could not be located. On that basis the Independent Children’s Lawyer, resists any order for costs.
As is submitted by counsel for the mother, the difficulty would appear to have been resolved quickly with a single phone call last night or this morning placed to Detective Sergeant B, who is fully aware of the existence of the DVDs and where they are stored.
The subpoena, as indicated, was issued in February and documents were required to be produced by 20 February, a full nine months ago. Since that time the matter has had a number of court events.
Hearing dates were allocated to the proceedings on 23 June 2014. One would have thought, indeed hoped, that if there was a difficulty with the evidence and the production of material crucial to the case, whether by a third party or otherwise, that this it might have been raised on that occasion. It was not.
The Police material has not been produced. An order was made as part of the trial directions that any further subpoena were to be filed and served so as to require production of documents no less than 21 days prior to the hearing dates. No further subpoena were issued.
The Court is left in the position it is, with no evidence upon which the matter can proceed in relation to an important, if not central, allegation in the proceedings. There are, assuredly, other issues in this case. Indeed, many of them. But the sexual abuse allegation is perhaps the most profound.
I propose now to turn to the relevant and prescribed considerations.
Financial circumstances of each of the parties
There is no real evidence before the Court as to the financial circumstances of the parties other than the evidence which arises from the Part 15 Report. The Report makes clear that Mr Beaumont is in receipt of Centrelink benefits and that he is in a poor financial position. He indicated during his limited cross-examination the he has no savings.
Ms Barney’s financial circumstances are not known. However, I am very conscious that she has the care of these three children and another child and is meeting her own costs in these proceedings. A significant financial impost upon her, no doubt.
I need not consider the financial circumstances of the Legal Aid Commission although one could ascertain them readily from either an annual report or any media discussion of the difficulties faced by legal aid commissions generally as regards funding.
I am conscious that subsection (5) precludes the Court having regard to funding of an Independent Children’s Lawyer. Whilst not applying in this case, the provision is intended to suggest that one should not impose burdens nor direct largesse towards the Commission in cost determinations.
Whether any party is in receipt of a grant of legal aid
Clearly, the Independent Children’s Lawyer, whilst not a party, is legally aided as is the father. The mother is not.
The conduct of the parties
The sole basis upon which today’s day of hearing is lost and, indeed, the matter not brought to a conclusion last night, (although by the time the Court adjourned it was 6.40 pm), is the absence of probative and admissible evidence led by Ms Barney in support of her allegation of a suggested disclosure by [Z] of sexual abuse. That is evidence that can and should have been obtained from at least two sources:
a)The mother’s evidence;
b)The production of material by Victorian Police.
The difficulties with respect to the absence of the relevant material from Victorian Police are or should have been known well and truly before now. The subpoena was returnable on 20 February 2014. That, in my mind, represents a justifying circumstance by and of itself for an order for costs.
Whether the proceedings were necessitated by a failure to comply with previous orders
That is not directly relevant. There has been no order for the production of this material from the Police. There was, however, an order made for the production of all evidence relied upon in the proceedings.
It is not for the Court to prescribe for the parties that which they place before the Court by way of evidence. However, one could not but wonder at the absence of admissible and probative evidence in relation to such an issue.
Whether any party has been wholly unsuccessful
All parties and the Independent Children’s Lawyer have been unsuccessful in that a day of the Court’s time is thrown away and with it the parties’ costs. That is most unfortunate not only for the parties but for other litigants before this Court. As would be readily apparent from any recent media coverage of the difficulties faced by the Court through retirement and illness of judges in this Court, there are real and growing delays in the determination of proceedings particularly, most concerningly, proceedings relating to the welfare of children.
This Court has filing levels in this Registry which warrant a full-time appointment. There are over 500 new matters filed per year and yet it is serviced by and with the Court sitting in this location for only 10 weeks per year, comprising five weeks of duty and five weeks of hearing, (together with two weeks of hearing in Wagga Wagga, that circuit having being consolidated with this).
As a consequence of this day being thrown away, if the Court had been apprised of that, other work could have been listed into this day to assist the many litigants who are now waiting over 12 months for the hearing of their case being 12 months from the date of allocation, let alone the date of commencement. Those delays will continue to increase with each and every matter filed. It is, accordingly, tragic that a full day of Court time, at significant cost to the taxpayer is wasted.
Whether a party has made an offer in writing
Not relevant.
Such other matters as the Court considers relevant
I am satisfied from that which is set out above, that clearly there is a justifying circumstance for an order for costs. The father and, through him, the Commission should not be required to meet that cost. It is through no fault of the father that the matter is adjourned. He has filed his material and he has put his evidence on, answering that which has been alleged against him, to the extent that the evidence led is admissible. He denies the allegation and the allegation, if determined today on the evidence which is led, could not be established. That is not to suggest that a positive finding of abuse must be found. B & B (1993) FLC 92-357, M & M [1988] HCA 68 and a myriad of other cases make clear that this is not the fundamental issue arising from an allegation of abuse. However, there is simply no evidence which would even support the allegation being raised with the Court.
As the proceedings must be adjourned and today has been wasted, an order will be made. There is thus the issue as to who would be liable for its payment, the mother or the Independent Children’s Lawyer?
I make clear that counsel for the father does not seek an order against other than the mother, and the mother personally. I am not invited to consider making an order against any other person, such as the mother’s attorneys. I am satisfied that the Court most assuredly has jurisdiction to make such an order. As there is no application for it to be so, I do not intend to do so.
Such costs as are awarded against the mother, I make clear, should be paid by her attorneys through either a reduction in her fees, a credit against invoices issued, or otherwise. The mother has not occasioned this adjournment.
In relation to the apportionment of costs, I am concerned that the non-presentation of relevant evidence, should have been well-known to both parties and the Independent Children’s Lawyer before yesterday. Documents were produced in February. Clearly, it was apparent in February that the very documents the subject of this determination were not present, because steps were taken by the Independent Children’s Lawyer, and further inquiries made, to obtain them.
Whether the Independent Children’s Lawyer was advised that the documents did not exist or otherwise, the fact that a single phone call has ascertained that this statement is erroneous suggests that some greater diligence might have been exercised in pursuing the subpoena. The subpoena was issued at the request of the Independent Children’s Lawyer and it is accordingly – whilst, in truth, the Court’s subpoena – the Independent Children’s Lawyer’s.
The mother is responsible for the conduct of her case, including the presentation of all relevant and available evidence. There could not be a total shifting of culpability onto the Independent Children’s Lawyer.
It is not the role of the Independent Children’s Lawyer to conduct the case of the parties. The Independent Children’s Lawyer has specific obligations set out in section 68LA of the Act. Those obligations do not include, whether a party is legally represented or self-represented, the obligation to conduct anyone’s case but their own.
The Independent Children’s Lawyer is entitled to call evidence and place material before the Court. In the context of this case, with an allegation of family violence and abuse, it would be important for the Independent Children’s Lawyer to ensure that all available evidence that they would seek to rely upon in forming a view, as they are obliged to do (see section 68LA(5)(b)), was before the Court and, if there was a deficiency in the evidence led by a party, that it was appropriately addressed.
It is also an obligation of the Independent Children’s Lawyer at section 68LA(5)(d) to endeavour to minimise the trauma to the child associated with the proceedings. The children will now be reinterviewed. I do not suggest that the Expert will traumatise them, but the delay, that reinterview, and the potential revisiting of issues which on the mother’s evidence are suggested on each occasion that they are raised with [Z] to re-traumatise her, thus means that that is a real possibility.
I am satisfied that there is a degree of culpability as regards both the Independent Children’s Lawyer and the mother, or those representing her, in the deficiencies of evidence which have led to this adjournment. Accordingly, I propose to apportion the culpability as to two-thirds to the mother and one-third to the Independent Children’s Lawyer. I am satisfied that this appropriately addresses the deficiencies in the zealous pursuit of appropriate evidence by each, although the primary responsibility – and thus, two-thirds culpability – rests with the preparation of the mother’s case.
I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 23 February 2015
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness
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