BEHN & ZIOMEK

[2018] FamCA 853

FAMILY COURT OF AUSTRALIA

BEHN & ZIOMEK [2018] FamCA 853

FAMILY LAW – PRACTICE AND PROCEDURE – Application for adjournment of final hearing – Where the parties’ evidence had been concluded – Where the mother sought an adjournment in order to obtain the transcript and/or judgment of Local Court proceedings relating to the father being accused of assault of the child – Where the outcome of these proceedings has relevance to the s 60CC considerations in these proceedings – Where the Court finds that it can determine the admissibility of that evidence upon its receipt – Adjournment granted.

Family Law Act 1975 (Cth) s. 60CC

APPLICANT: Mr Behn

RESPONDENT: Ms Ziomek

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 5 of 2014

DATE DELIVERED: 27 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 27 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

COUNSEL FOR THE RESPONDENT: Ms Carr

SOLICITOR FOR THE RESPONDENT: David H Cohen & Co.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

THE COURT ORDERS THAT:

1. The matter be adjourned until 31 January 2019 at 10:00am for the purpose of the Court considering an application by the mother to reopen evidence in these proceedings to include the record of proceedings and/or judgment of the Local Court of New South Wales at Parramatta on 23 July 2018.

2. The mother serve a copy of the additional material that she seeks to tender into evidence, within 7 business days of its receipt.

3. In the event of the father and/or the Independent Children’s Lawyer requiring a person to attend to give evidence in respect to the additional material, notice to that effect must be given by close of business on 24 January 2019.

THE COURT NOTES THAT:

(A)The Independent Children’s Lawyer will issue a subpoena at the request of the father in respect to material that he may seek to rely upon in the event of the mother being given leave to reopen her case.

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 Behn & Ziomek 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 SYDNEY

FILE NUMBER: NCC 5 of 2014

Mr Behn

Applicant

And

Ms Ziomek

Respondent

EX TEMPORE JUDGMENT

1. This decision concerns an application made by Counsel for the mother for an adjournment of these proceedings in order to enable the mother’s legal representatives to obtain a copy of the decision of the Local Court of New South Wales at Parramatta dated 23 July 2018 in respect to criminal charges brought against the father.  It was acknowledged that the charges related to the father’s interactions with the child.

2. In these proceedings, documents produced by the New South Wales Police Force pursuant to subpoena state that, in 2018, the Local Court found that an offence of common assault (T2) occurred in 2017 and 2018.  No conviction was recorded and a section 10 bond was entered into by the father for a period of two years.

3. The Court also has before it, as an attachment to an Affidavit of the father, a statement taken by an investigating officer from the Joint Investigation Response Team (“JIRT”) in respect to an interview conducted by members of that team with the child.  During the course of these proceedings, the father has contended that the version of events set out in the statement provided by the child to the investigating JIRT officer is incorrect.  Further, in re-examination, the father’s current wife, Ms Blair, also gave evidence that was contrary to the statement provided by the child to JIRT.  There was, however, inconsistencies between Ms Blair’s account of the relevant event on 26 January 2018 and the account provided by the father. 

4. In those circumstances, Counsel for the mother has requested the opportunity to obtain a record of the decision of the Local Court and potentially, the transcript of those proceedings.  It was not disputed that the child was cross-examined during the course of those proceedings. 

5. The decision and transcript of the Local Court proceedings are potentially relevant to the issues that I am required to consider under s 60CC of the Family Law Act 1975 (Cth) (“the Act”) in determining what orders are in the best interests of the child. Most significantly, those documents appear to be relevant to s 60CC(2)(b) of the Act, that is, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. The Court faces some difficulty, insofar as the relevant Local Court documents are not before the Court and, therefore, I cannot conclusively determine that they are relevant, admissible and should not otherwise be excluded on the basis of prejudice or such further issue as may be raised by the father.

7. However, it appears to me that, in circumstances where the material that the mother now seeks to obtain has potential relevance and where the issues of relevance, admissibility and discretion can be determined when those documents are bought to the Court in answer to a subpoena, the appropriate course of action is for these proceedings to be adjourned until 31 January 2018. 

8. In exercising my discretion to grant that adjournment, I am concerned that steps have not been taken at an earlier time to obtain the relevant documents.  I note, in that respect, that the decision of the Local Court was given on 23 July 2018, being approximately two months ago and, in my view, it reasonably could have been expected that the documents would potentially be relevant to these proceedings.  However, I note the submission of Counsel for the mother that the need for the relevant documents did not become apparent to the mother’s legal representatives until the father stated, in his case outline document prepared for the purpose of these proceedings, a different version of events to the account provided by the child in his statement to JIRT.

9. In those circumstances, while it would, in my view, have been prudent for the relevant documents to have been obtained at an earlier time, I accept that the differing versions of the events was not a live issue in these proceedings prior to receipt of the father’s case outline document. 

10. Further, I find that the delay in the finalisation of these proceedings brought about by this adjournment, which causes prejudice to all parties, needs to be weighed against the imperativeness of the Court making a decision that is in the best interests of the child, in circumstances where potentially relevant information, concerning possible risk to the child, is not before the Court.  Priority has to be given to ensuring that all potentially relevant issues are properly considered by the Court prior to the making of final orders. 

11. On that basis, I grant the mother’s application for an adjournment and make the orders accompanying this decision. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 27 September 2018.

Associate: 

Date:              23 October 2018