Beckett and Horan
[2008] FMCAfam 1437
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BECKETT & HORAN | [2008] FMCAfam 1437 |
| FAMILY LAW – Evidence – evidence of a witness under 18 years of age – discretion to permit such evidence – factors involved. |
| Family Law Act 1975, ss.69ZN, 69ZQ, 69ZT, 100B |
| Foley & Foley (1978) FLC 90-511 |
| Applicant: | MS BECKETT |
| Respondent: | MR HORAN |
| File Number: | BRC 6731 of 2007 |
| Judgment of: | Wilson FM |
| Hearing date: | 15 December 2008 |
| Date of Last Submission: | 15 December 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 15 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carmody |
| Solicitors for the Applicant: | Parker Family Law |
| Counsel for the Respondent: | Mr Curran |
| Solicitors for the Respondent: | Bayside Solicitors |
| Counsel for the ICL: | Mr Selfridge |
| Solicitors for the ICL: | Legal Aid Queensland |
ORDERS
No orders made.
IT IS NOTED that publication of this judgment under the pseudonym Beckett & Horan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 6731 of 2007
| MS BECKETT |
Applicant
And
| MR HORAN |
Respondent
REASONS FOR JUDGMENT
An application is made by the mother to adduce evidence from Ms S. Objection was taken by counsel for the father, pursuant to s.100B of the Family Law Act 1975 (“the Act”), which provides that a child must not, ordinarily, swear an affidavit for the purpose of proceedings, unless the Court makes an order allowing the child to do so; and precludes a child being called as a witness, unless the Court makes an order allowing that to occur.
It is plain from s.100B of the Act that a discretion subsists in the Court to allow persons under 18 to give evidence. As to the factors which might influence the exercise of that discretion, Lambert J. in Foley & Foley (1978) FLC 90-511, at page 77, 680 - set out some of the factors relevant for consideration in the exercise of that discretion, under what were then regulations to the Family Law Act.
It seems to me that the matters identified by his Honour remain relevant. The giving of evidence in children's proceedings is now governed by Division12A of Part VII of the Act and the Court is given a wide discretion, particularly under s.69ZQ, to admit evidence that might otherwise not have been earlier admissible. I refer also to s.69ZT and 69ZN of the Act to that effect.
Ms S in her affidavit gives evidence of quite serious and disturbing behaviour on the part of the father. Her evidence is, to my mind, highly relevant and cogent. It is said on behalf of the father that the evidence should more properly be given by Mr J, who was Ms S's boyfriend at the time the events deposed to in her affidavit took place. It is not immediately apparent from the face of Ms S's affidavit that Mr J was in fact present when the various events took place. He may be able to give evidence to the same general effect. That is a matter that is not presently known and may not become clearer, unless and until Ms S is cross-examined. I am unable to conclude at this stage that there is an alternative source, reasonably available, from which such evidence can be given.
There is some confusion as to Ms S's date of birth. There is reference in Mr Church's most recent report to her being born in April 1992 but to her being already 17 years of age when she spoke with Mr Church. Ms Carmody has informed the Court that Ms S is currently 17 years of age and will turn 18 in April next year. I will be better able to assess her maturity if she gives oral evidence.
The proceedings are, obviously, child-related proceedings in which both parties seek parenting orders. Ms S is not related to either party but is more closely aligned with the mother than with the father. Whether or not that friendship taints her evidence is a matter that is best tested in cross‑examination.
Another matter that influences me to conclude that Ms S should be permitted to give evidence is that she has, obviously, spoken to the report writer and he has taken her statements into account in forming his opinion, although I must point out that, at para.96 of his most report, Mr Church says that he has not given Ms S's allegations substantial weight. If I form the view that Ms S's evidence should be accorded serious weight, that, of course, will affect the views that the Court may take as to Mr Church's conclusions.
In the circumstances, I give the mother leave to call Ms S as a witness in these proceedings.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 20 January 2009
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