Beckett & Horan (No.2) - [2008] FMCAfam 1438

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BECKETT & HORAN (No.2)

[2008] FMCAfam 1438

FAMILY LAW – Evidence – admissibility of files of police service and Department of Human Services – whether business records – whether s.69(3) Evidence Act applies – whether ordinary rules of evidence should apply.

PRACTICE AND PROCEDURE – Evidence – admissibility of governing files as business records – application of s.69(3) Evidence Act.

Family Law Act1975, ss.69ZT
Evidence Act, s.69
Children Youth and Families Act 2005, ss.191, 209

Applicant:

MS BECKETT

Respondent:

MR HORAN

File Number:

BRC 6731 of 2007

Judgment of:

Wilson FM

Hearing date:

16 December 2008

Date of Last Submission:

16 December 2008

Delivered at:

Brisbane

Delivered on:

16 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

Leave is granted to the Father and Ms F to adduce further affidavit evidence regarding:
(a)Issues raises in the affidavit of Ms S; and
(b)The Father’s living arrangements from when he moved to Victoria to the current time
Any such affidavit is to be filed and served by 30 January 2009.
Any further evidence to be adduced by the Independent Children’s Lawyer, if to be given by affidavit, be filed and served by 30 January 2009. If otherwise, the identity of the witnesses and a précis of the evidence they are to give be supplied to the Solicitors for the Father and Mother by 6 February 2009.
If the Mother proposes to adduce further affidavit evidence, any affidavit to be filed and served by 6 February 2009.
The Interim Consent Orders made on 15 August 2008 will continue subject to and conditional upon the Father submitting to drug testing as reasonably requested by the Independent Children’s Lawyer. Such testing to include:
(a)Not more than two hair follicle tests, one of which is to be conducted in the next seven days and one as close as practicable to the resumed hearing, so that the results are available for those dates; and
(b)Not more than three urine analysis tests, to be undertaken by the Father within 24 (twenty-four) hours of notice being given to him by the Independent Children’s Lawyers.
For the purpose of notification of the requirement for drug testing, the Independent Children’s Lawyer shall notify the Father of the requirement for a drug test by:
(a)Sending a text message to the Father’s mobile phone;
(b)Sending a facsimile transmission to the Father’s Solicitors; and
(c)
Confirming the details by telephone to the Paternal Grandmother, Ms F, on 03 [omitted] and/or the Paternal Great Grandmother,

Ms L, on 03 [omitted].
Pursuant to the Consent Orders made on 15 August 2008, the Child spend three weeks with the Mother from 24 December 2008.
The final hearing is adjourned to 10:00am on 23 and 24 February 2009 in the Federal Magistrates Court of Australia at Brisbane.
Costs are reserved.

THE COURT NOTES THAT:

A. The Court considers it extremely important that due to issues raised that Legal Aid funding be extended to the Mother and the Father on the resumed hearing dates.

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

A question has arisen in these proceedings as to the admissibility into evidence of two files; one produced under subpoena by the Victoria Police Service, the other by the Victoria Department of Human Services. These are parenting proceedings, to which Division 12A of the Family Law Act1975 (“the Act”) applies.
The documents are sought to be tendered by both counsel for the Independent Children's Lawyer and counsel for the father. Section 69ZT(1)(c) of the Act provides that Parts 3.2 to 3.8 of the Commonwealth Evidence Act do not apply to parenting proceedings. Relevantly, those parts deal with the rule against hearsay and statutory exceptions to it, therefore, prime facie, the records are admissible into evidence pursuant to s.69ZT(1) of the Act. As has been pointed out during submissions, it is then a matter for the Court to ascribe such weight to the evidence as it thinks fit: see s.69ZT(2) of the Act.
The Court is given a power to apply the ordinary rules of evidence in certain circumstances by s.69ZT(3) of the Act. The Court must be satisfied that:
a)The circumstances are exceptional, and
b)The Court must take into account in addition to other matters it thinks relevant:
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; and,
iv)The powers of the Court to adjourn the hearing to make another order or to give a direction in relation to the evidence.
In this case, very serious allegations have been made against the father concerning his treatment of the child, the subject of these proceedings, [X]. Direct evidence of such matters has been led in the mother's case from a witness, Ms S.
It is sought to tender the records of the two Departments concerned, to show, as I understand:
a)That complaints made to the Department and to the police have been investigated and found to be unsubstantiated or not warranting further investigation, and,
b)To damage or undermine the credibility of Ms S and the mother.
I have, for the purpose of determining the question of admissibility of the evidence, looked at the records in both files sought to be tendered with the exception of a sealed envelope, which has been marked, "Not to be opened except at the direction of the Court in accordance with ss.191 and 209 of the Children Youth and Families Act 2005."
In my view, where allegations are made of abuse of a child, particularly a very young child, the Court must be very careful in how it deals with the evidence put before it. Allegations are easily made and often difficult to disprove. The quality of evidence that the Court should receive in assessing whether such allegations are substantiated, whether there is an unacceptable risk of harm to the child in either parent's care and whether either parent has properly fulfilled his or her obligations as a parent, should, in my view, be of the highest quality available. It is, in my view, quite unsatisfactory, where direct evidence has been given of matters, to simply tender Government files and rely on the contents of those files to undermine direct oral evidence.
The evidence in this case, as to whether or not the child has been abused, or whether false allegations have been made, is of the utmost importance. It is a central issue in these proceedings. The evidence contained in the files is of a number of types. There are direct observations by Departmental officers, there are interviews by Departmental officers and police with the parents and third parties, at least one of which importantly, is not giving evidence in these proceedings, there are reports from and references to medical practitioners and their opinions are recorded. None of the matters contained in the files will, if they are simply admitted into evidence, be tested nor will there be any examination of the circumstances in which the records were made in the files. I refer to one matter in particular to highlight this concern. In the Department of Human Services file, there is reference to a notification being made, that notification being investigated and then to the matter being referred to a more senior officer, who determined for some unexplained reason, that the complaint was to be treated as malicious. If that evidence were allowed to be admitted untested, it would not, in my view, be fair.
I am satisfied that the circumstances in this case are exceptional. Counsel did not address what that word meant. In my view, "exceptional" means "out of the ordinary". Where serious allegations of abuse are made against a parent, it would be difficult to think of more exceptional circumstances.
Accordingly, I conclude that the ordinary rules of evidence should apply to the documents sought to be admitted, contained in the Departmental files.
That then leads me to s.69 of the Commonwealth Evidence Act. It was sought to tender the records of the two bodies to which I have referred as business records. As I have said, the documents were produced in answer to a subpoena, a copy of which appears in each file sought to be tendered, or on the Court file. I am satisfied that the documents produced form part of the records kept by the Victorian Police Service and the Victorian Department of Human Services in the course of their respective functions. The documents contain previous representations made or recorded in a number of documents in the course of those respective businesses. Section 69(2) of the Commonwealth Evidence Act then provides an exception to the hearsay rule. However, that exception does not apply under s.69(3), if the representation:
a)Was prepared or obtained for the purpose of conducting or in contemplation of or in connection with an Australian or overseas proceeding, or,
b)Was made in connection with an investigation relating or leading to a criminal proceeding.
As I remarked during argument, it seems to me that subs-s.69(3) is directed to the very types of documents sought to be admitted as business records in these proceedings. The file of the Victorian Police Service can be taken in two parts. The first relates to the number of criminal histories. Those documents were prepared or obtained for the purpose of an Australian or overseas proceedings, namely these proceedings. The other documents in the file relate to an investigation by the Victorian Police Service following on from a complaint made by the mother and a nurse from the Maternal and Child Health Service. It seems to me that the jurisdiction and function of the Police Service is to investigate complaints with a view to determining whether or not criminal proceedings ought be instituted. In those circumstances, it is difficult to escape the conclusion that the documents are prepared either in contemplation of or in connection with an Australian or overseas proceeding.
The exception in ss.69(2) of the Evidence Act does not apply to the records of the Victoria Police Service and I decline to accept their tender.
The records of the Department of Human Services are slightly more problematic. The file records in a number of summary documents, various sections of the Victorian legislation, which are the focus of the inquiry. It is correct to say, as counsel for the Independent Children's Lawyer submitted, that an investigation may be carried out by an organisation such as the Department of Human Services, without there ever being Court proceedings. The investigation may be made to determine whether a parent is properly caring for a child and once those investigation have been carried out, that may be the end of the matter. However, the fact remains that part of the function of a Department such as the Department of Human Services, is to bring Court proceedings where allegations are substantiated and a child is in need of protection. At the time the investigation is commenced, it must always be in the contemplation of Departmental officers that Court proceedings may be necessary, after all, their function, as I understand it, is to ensure that the child is not being exposed to an unacceptable risk of harm, and if he or she is, to take Court proceedings to prevent that behaviour continuing.
On the material presently available, I conclude that the records of the Department of Human Services are also caught by s.69(3) of the Evidence Act, and that therefore, the exception to the hearsay rule in s.69(2) of that Act does not apply. I reject the tender of those documents.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 20 January 2009