CHOUDHARY & MCDONALD

[2016] FamCA 304

FAMILY COURT OF AUSTRALIA

CHOUDHARY & MCDONALD [2016] FamCA 304

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Question as to whether s 69ZT(3) should be invoked and the provisions of the Evidence Act 1995 (Cth) applied – allegations of sexual and physical abuse against the father – allegations of emotional abuse against the mother – whether ‘exceptional circumstances’ – order that the rules of evidence apply

FAMILY LAW – PRACTICE AND PROCEDURE – Whether the respondent mother should be treated as the applicant for the purposes of the final hearing – where the mother has made serious allegations against the father – order that the mother be treated as the applicant for the purposes of the final hearing

FAMILY LAW – CHILDREN – Family consultants – application by the mother for a replacement of the family consultant – where the family consultant proposed has previously prepared a s 11F report and a family report – where the mother alleges that the family consultant is biased – where the mother is also critical of other professionals involved in the matter – principles in s 69ZN of the Family Law Act 1975 (Cth) considered – impact upon the children of a new family consultant considered – order that the family consultant proposed prepare an undated family report

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

APPLICANT: Mr Choudhary

RESPONDENT: Ms McDonald

INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

FILE NUMBER: MLC 7639 of 2014

DATE DELIVERED: 5 May 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 29 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glass

SOLICITOR FOR THE APPLICANT: Lawcorp Lawyers Pty Ltd

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dosanjh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

Orders

IT IS ORDERED THAT

1. Pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) the rules of evidence apply.

2. The mother be treated as the applicant for the purposes of the final hearing to commence before Justice Macmillan on 26 September 2016.

3. Pursuant to s 62G(2) of the Act, the parties and the children B born … 2008 and C born … 2010 attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry, if practicable Ms D, for the purposes of the preparation of a family report not to be commenced until after 8 August 2016 but to be completed and released by 25 August 2016.

4. The family consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Choudhury & McDonald 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 MELBOURNE

FILE NUMBER: MLC 7639  of 2014

Mr Choudhary

Applicant

And

McDonald

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter was listed for a first day hearing before me on 29 April 2016. On that date the father who is the applicant in the proceedings was represented by counsel as was the Independent Children’s Lawyer (“the ICL”). The mother, who is the respondent, appeared in person.

2. The matter is to be listed for a final hearing of the parties competing parenting applications with respect to the two children of the relationship B born in 2008, who is now seven and C born in 2010 who is six.

3. The children presently live with the mother and have been spending limited supervised time with the father. In essence it is the mother’s case that the father has physically and emotionally abused both children and sexually abused B and that the children should spend no time with the father.  These allegations are strenuously denied by the father and it is his case that allegations of abuse made by the mother, and her determination to exclude him from the children’s lives based upon those allegations, in circumstances where those allegations have not been substantiated, expose the children to emotional and psychological harm. On that basis he seeks orders that the children live with him and that they should, after a three month period during which he says they should not spend any time with the mother, thereafter commencing with a three month period of supervised time, spend time with the mother each alternate weekend from after school on Friday to the commencement of school on Monday, overnight each alternate Wednesday, for half of school holidays and on special occasions. Both the father and the mother seek sole parental responsibility for the children.

4. The matter is to be set down for hearing as a five day matter commencing on 26 September 2016. In considering the listing of the matter for final hearing a number of issues arose either raised by me, counsel for both the father and the ICL or the mother. Those issues were as follows:

   a)Whether the mother should be treated as the applicant for the purposes of the hearing;

   b)Whether the rules of evidence should apply; and

   c)Whether Ms D, who has already prepared a s 11F Report  and a Family Report, or some other family consultant should prepare a further family report. The Family Report prepared by Ms D is dated 18 June 2015 and was released on 30 June 2015.

5. Division 12A of the Family Law Act 1975 (Cth) (“the Act) sets out the principles to which the court is to have regard when conducting child related proceedings. Those principles which are set out in s 69ZN of the Act include the following:

   ·That the court is to consider the needs of the child and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings (s 69ZN(3));

   ·That the court is to actively direct, control and manage the proceedings (s 69ZN(4));

   ·That proceedings are to be conducted in a way that will protect the child concerned from being subjected to, or exposed to, abuse neglect or family violence and the parties from being exposed to family violence (s 69ZN(5));

   ·That the proceedings are to be conducted in a way that will as far as possible promote co-operative and child-focused parenting by the parties (s 69ZN(6)); and

   ·That the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible (s 69ZN(7)).

6. In giving effect to these principles the court amongst other things must decide which issues require full investigation and hearing and which may be disposed of summarily and give directions or make orders about the timing of steps that are to be taken in the proceedings (s 69ZQ of the Act)).

7. The Court’s general duties and powers are set out in s 69ZX of the Act and include, relevant for the purposes of the matters I must decide, directions or orders in relation to the matters to which parties are to present evidence, as to who is to give evidence in relation to particular issues and how particular evidence is to be given. The Court’s powers in the context of the principles governing the conduct of child related proceedings are broad.

8. Having regard in particular to the fifth principle set out in s 69ZN(7), s 69ZT of the Act provides that a number of the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply to child related proceedings. These include the provisions which deal with hearsay and opinion evidence.

9. Section 69ZT(3) provides that the court may decide to apply one of more of the provisions of a Division or Part of the Evidence Act if;

   (a)the court is satisfied that the circumstances are exceptional; and

   (b)the court has taken into account (in addition to any other matters the court thinks relevant):

   (i)the importance of the evidence in the proceedings; and

   (ii)that nature of the subject matter of the proceedings; and

   (iii)the probative value of the evidence; and

   (iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. 

10. It was submitted by counsel for the father and the ICL that the rules of evidence should apply in particular having regard to the likely impact of these proceedings upon the children, on the one hand if I were to accede to the mother’s application their having no relationship with their father and on the other hand the consequences, if I were to accede to the father’s application, of a very significant change in the arrangements for their care.

11. Although I explained the issues to the mother in some detail, to be fair it is a reasonably complex issue and her understanding was in those circumstances limited, she did not address this issue in any real sense. The mother did however say that she had not decided whether she would be instructing solicitors to act on her behalf and on that basis I explained to her the importance of her trial affidavits and urged her to at the very least seek legal advice with respect to the preparation of the affidavits upon which she will be seeking to rely.

12. As Ms D observed at paragraph 57 of the Family Report “[t]his case has significant consequences and therefore it is important that the right conclusion is reached as it is most likely that the children will need to be parented by only one of their parents due to the significant safety risk that each poses if the others [sic] version is correct.” There are many cases such as this one in which one of the possible outcomes is that children will ultimately be left in the position of not having a relationship with both of their parents. That alone does not necessarily make the case exceptional. 

13. However, the mother’s case appears to be largely based upon what she says the children have told her about the time they spend with the father. The allegations she makes in this case have been investigated by both the Department of Health and Human Services (“DHHS”) and the Sexual Offences and Child abuse Investigation Team and have not been substantiated. Whilst that is also not necessarily exceptional, what does stand out in this case is the mother’s absolute commitment to her view that the allegations she made based upon what she said that children had disclosed were not taken seriously, and had not been properly investigated by either DHHS or the police, and that both DHHS and Ms D were biased. This was consistent with her submissions to me in particular in relation to whether an updated family report should be prepared by Ms D or some other family consultant. Ms D said at paragraph 66 of her Report that:

    [the mother] expects that her reporting of what she describes as facts be accepted without any external validation. It is unlikely that [the mother] will accept anything other than what she believes in the truth of this matter, and given this, it will be difficult if findings to not go in her favour. She may be unable to accept that and is in danger of going to extreme lengths to gain what she believes is justice.

14. Ms D also observed some evidence of coaching by the mother in her interviews with the children. She said at paragraph 64 that she held “… some concerns as to the level of questioning [the mother] engages in with the children. Even across the lunch period [the mother] was able to inform the writer of all that the children had said during their interview.” In my view this is significant where it does appear that the allegations made by the mother are based upon what she says she has been told by the children.

15. These are serious matters which add a layer of complexity to a matter in which the outcome for these children, depending upon what findings the Court makes, are at extreme ends of the spectrum. I am satisfied that in all of the circumstances the rules of evidence should apply and will order accordingly.  

16. The next issue I was called upon to address was the order of the proceedings. Although in this case each of the parties is critical of and makes allegations against the other based upon which they say the children should live with them, in circumstances where it is the father’s case that the mother is attempting to exclude him from the children’s life on the basis of the allegations she makes, the starting point is the allegations of physical, emotional and sexual abuse made by the mother.

17. In those circumstances in my view the fairest and most efficient way for the proceedings to be conducted is for the mother to be treated as the applicant and filing the affidavits upon which she seeks to rely first and giving her oral evidence first so that the father knows the case he is to meet and can reply. The mother will, as is the normal course, have the opportunity to respond to any matters canvased by the father not addressed in her affidavit of evidence in chief. Both counsel for the father and the ICL submitted that the Court should adopt this course. Again I explained the process to the mother who said she did understand and did not offer any objection.

18. The final issue was the question of whether, as submitted by both counsel for the father and the ICL, an updated report should be prepared by Ms D who has, as already referred to, prepared both a s 11F Report and a Family Report or whether, as submitted by the mother, a report should be prepared by another family consultant.

19. The mother submitted that:

    a)At a hearing before Judge Harland on 30 June 2015, her Honour referred to the children having made disclosures to Ms D whereas there was no mention in Ms D’s report of the children having made any disclosures;

    b)B had later told her that she had made disclosures to Ms D;

    c)Ms D had told Ms E at DHHS that it was her assessment that the mother had made false allegations and that the father would lose contact with his children because he would not be able to cope with the stress caused by the mother; and

    d)The court would be assisted by a report prepared by someone looking at the matter with fresh eyes.

20. These are serious allegations about the conduct of Ms D and I do not take them lightly. In my view they highlight the importance of the rules of evidence in this case. I do not know what Judge Harland said or whether or not, as the mother asserts, she intended to suggest that the children had made disclosures of abuse to Ms D or as Ms D opines in her report the mother will not accept anything other than what she believes to be the case. It is certainly the case that the only information available to Judge Harland in relation to what the children may or may not have said in their interview with Ms D would have been what she had read in the Family Report which was released that day as Ms D did not given any evidence and was not cross-examined on that occasion.

21. It is also the case that Ms D does refer at paragraph 44 of the Family Report to having asked B “is there something you need to tell the writer straight away” and that in response B had said that her mother wanted her to remember to tell Ms D that she did not want to see the father anymore. Ms D also reported that B made many negative comments about the father. The mother’s description of what she says she was told by B about having made disclosures to Ms D in October 2015, almost five months after the interviews for that report, lacked specificity and in my view did not really clarify the matter. 

22. Similarly, although there is as submitted by the mother a file note in the DHHS file dated 19 June 2015 of a conversation between the writer of that file note and Ms D (Exhibit M1), it is not clear and will not be clear until the evidence is tested what Ms D may have said. I note that the mother proposes to call Ms E who wrote the file note and in my view these are all matters that can and should be put to Ms D in cross-examination.

23. Counsel for the father submitted that even if I ordered that a family report be prepared by another family consultant, Ms D, having prepared two previous reports, would in any event be a witness in the proceedings which would unnecessarily add to the complexity of the matter.

24. He further submitted in my view correctly that in the Family Report Ms D had reflected upon the change in the children’s presentation between the time she interviewed them for the s 11F Report dated 12 February 2015 and the interviews for the Family Report and that the Court would be assisted by her observations of any further changes in their presentation. That is almost certainly the case particularly given the father’s case that the mother is influencing the children and that her behaviour is having a negative effect upon not only their relationship with him but their welfare generally.

25. I must weigh up what appears to be the mother’s concerns about the possible bias of Ms D, in circumstances where she is critical of all the professionals involved and not just Ms D, against Ms D’s knowledge of the history of the matter, the children’s familiarity with Ms D and the impact upon the children of the introduction of yet another professional.

26. I do not accept the mother’s submission that the Court would be assisted by a fresh set of eyes in this case. To the contrary, given Ms D’s description of the change in the children’s presentation between the s 11F Report and the Family Report, it is my view that the Court will be assisted by the knowledge Ms D has of this family and that that evidence, which in my view is necessary for the determination of the case, will be lacking if another family consultant were to prepare the family report as proposed by the mother.

27. The principles in Division 12A of the Act for conducting children related proceedings require the court to court to consider the needs of the children and the impact the proceedings may have upon those children and to actively direct and control the conduct of the proceedings. In circumstances where Ms D’s evidence will be tested and the mother will have the opportunity to put those matters she says demonstrate Ms D’s bias to Ms D, I am satisfied that the risk to the children of the introduction of a new family consultant outweighs the benefits, if any, of another family consultant being engaged to prepare that report and that Ms D is uniquely placed, having already prepared two reports, to make a current assessment of the children’s welfare, evidence which is my view essential to the matters I must determine. In all of the circumstances I propose to order that Ms D prepare an updated family report.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 5 May 2016.

Associate: 

Date:  5 May 2016