Coleman and Hindle and Anor (No 2)

[2009] FamCA 987

FAMILY COURT OF AUSTRALIA

COLEMAN & HINDLE AND ANOR (NO. 2) [2009] FamCA 987

FAMILY LAW – EVIDENCE – Of a child

Family Law Act 1975 (Cth)

APPLICANT: Ms Coleman

FIRST RESPONDENT:	Ms Hindle
SECOND RESPONDENT:	Mr Hindle

THIRD RESPONDENT Department of Community Services (Child Safety Services)

INDEPENDENT CHILDREN’S LAWYER: Mr Carter

FILE NUMBER: BRC 1353 of 2008

DATE DELIVERED: 9 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 9 October 2009

REPRESENTATION

FOR THE APPLICANT: The Applicant appeared on her own behalf

SOLICITOR FOR THE FIRST RESPONDENT: Ms Hewitt, of Bridges Family Law Specialists

FOR THE SECOND RESPONDENT: The Second Respondent appeared on his own behalf

COUNSEL FOR THE THIRD RESPONDENT: Mr Selfridge of Counsel

SOLICITOR FOR THE THIRD RESPONDENT: Crown Law, Brisbane

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Carter of Carter Farquar Lawyers

Orders

1. The Father is to file and serve a Notice of Address for Service within 7 days of today.

2. The Application in a Case filed by the Mother on 6 October 2009 and the Application in a Case proposed to be filed by the Department of Communities (Child Safety Services) be adjourned for hearing at 10.00am on 23 October 2009 in the Brisbane Registry of the Family Court of Australia.

3. Both Applications in a Case filed by the Maternal Grandmother on 28 September 2009 be dismissed.

4. The Oral Application made by the Maternal Grandmother today “that something be done about” a transcript is dismissed.

5. Costs of all parties of and incidental to today’s hearing be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Coleman & Hindle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1353 of 2008

MS COLEMAN

Applicant

And

MS HINDLE

First Respondent Mother

And

MR HINDLE

Second Respondent Father

DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES)

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 28 September 2008, Ms Coleman, the maternal grandmother, filed yet more applications in these proceedings.  I have delivered more than one set of earlier reasons for judgement in respect of this matter.  Included in an earlier set of reasons was an extensive quotation from comments made by the Queensland Court of Appeal.  The comments made by her Honour, which were, in turn, cited by me in my reasons are just as apposite to the applications before me on this occasion as they were in respect of the applications before me on that earlier occasion.

2. As the argument from the maternal grandmother progressed, she indicated that her applications were, in fact, sought in the alternative. 

3. The first of the two applications is an application that X, the child the subject of these appallingly unfortunate proceedings:  “Attend to the court to give verbal evidence on Thursday, 22 October 2009 in the proceedings presently before this court.”

4. A further order was sought that a subpoena issue, I gather at the behest of the Magellan registrar so as to secure the attendance of the child. 

5. The child is not quite 13, born in October 1996.  It is said that he is required to give evidence in respect of events that occurred six and a half years ago, when he was six and a half.

6. It is said that this occurrence is necessary only in circumstances where the, as it were, alternative application, is refused.  That application seeks an order that:  “The subpoenaed documents held in the Family Court Registry Sydney (etc) be made available to E-law Pty Ltd [address indicated].”

7. The application goes on to seek an order that:

   E-Law Pty Ltd ... be permitted to copy all documents, tapes etc., held in the subpoena room of the Family Court Registry Sydney ... for the purpose of determining who is responsible for the fabrication of such material.

8. The circumstances in which, it is said, that the alleged fabrication of an official police tape has occurred and why it is said it is required in the context of these proceedings are, putting it at its highest, obscure and difficult to understand.

9. As but one example of that, I quote in full paragraph 6 of the affidavit of the maternal grandmother, filed in support of the applications to which I have just referred.  The paragraph as drafted does not make sense to me, despite having read it a number of times, nor is its sense assisted or elucidated by reference to the oral submissions made by the maternal grandmother. 

10. Paragraph 6 is as follows:

    At present, in the Family Court Registry Sydney is a supposed tape of 16 March 2003 between the applicant and Detective [T] which senior Queensland Police have informed the applicant by telephone, that it also includes the eldest subject child.  When the applicant asked, it could not be confirmed that either the police officers, the youngest child or the two now deceased […] dogs appeared on this supposed CD of the C90 Compac cassette of six and a half years ago.  On Friday 25 September 2009 it was confirmed to the applicant by a senior officer of the Queensland Children’s Court that the letter had been received and was on file to show that Deputy Commission […], when subpoenaed to the BCC in August 2008, had not been able to comply and that no documentation of an alleged incident at [R] in the state of Queensland, existed.  Now there is supposed to be documentation supplied to the Family Court of Australia some 13 months later.

11. I have not the slightest idea what that paragraph is supposed to mean or how it is relevant to any issues connected with X’s best interests or other proceedings before the Court.

12. In another affidavit filed by the maternal grandmother in support of the application, she deposes as follows.  Again it seems to me instructive to quote the paragraph in full:

    Numerous taped dealings between the applicant and certain Queensland police officers exist.  By substituting a tape, not only does the third respondent, who as a result of the knowingly false allegations of the second respondent, obtain the advantage of destroying the credibility of the applicant, but also that of the eldest child and thereby destroy forever the good name and integrity of the eldest child and his future livelihood.  The eldest child will forever be known as having a mental illness and possibly drugged as such for the respondents to achieve what they want and for the second respondent to continue to cover up her “paedophilia” behaviour of the youngest child, with no one willing to take the word of the eldest child into account on anything he says.  Parents should protect children.  Children are unable to defend themselves when none is willing to so listen when they, the third respondent, is trying to pay back for what occurred in 2003.

13. It is important to record that the applicant has been given leave already, by earlier order of this court, to inspect all documents produced pursuant to subpoena, including, in the case of the tape, (the relevance of which remains beyond me) to listen to that tape and to obtain such information from it as she might require. 

14. There is no material either from the maternal grandmother, or from the named corporation, which would indicate what the corporation intends to do, if anything, with the tape in circumstances where the tape was listened to.

15. The maternal grandmother, who appears by telephone today, indicated that she did not know what the corporation would do, but she assumed that it involved the corporation listening to, and perhaps taking a copy of, the tape. 

16. The purpose of that exercise is by no means clear to me.  There is, apparently, some sort of vague assertion that the tape, which I should emphasise is an official police tape, was somehow doctored, fabricated or otherwise dealt with.

17. Section 100B of the Family Law Act makes it abundantly plain that children should not become involved as deponents in this court save in circumstances where the court orders their participation.

18. The circumstances in which the court would order a 13-year-old child to give evidence in proceedings, let alone a 13-year-old child giving evidence in respect of alleged occurrences, which may, or may not, have occurred in his presence some six and a half years previously when he was a tiny child, would be extraordinarily rare. 

19. In this case there is not one scintilla of evidence that suggests to me that it is remotely in the child’s best interests that he be involved in the proceedings, let alone be involved in the proceedings in a manner that would see him come to court and give evidence. 

20. Further, the Act, when read as whole, seems to me, support the conclusion just referred to as a general proposition.

21. If specific reference is needed for that proposition then regard need only be had to the provisions of Division 12A of the Act and the impact of that Division has on the Rules in relation to hearsay evidence. 

22. This court is obliged, as the objects of both the Act and the Family Law Rules 2004 make abundantly clear, to ensure that proceedings before it occur with due proportionality and that orders and directions are made so as to ensure that proceedings under the Act occur in circumstances in which the least possible harm is caused to children and within which the parties to litigation can expect to have the litigation determined by reference to issues relevant to those matters under the Act joined in the proceedings before it.

23. It is not for me to prejudge the application for contravention which will be heard in a couple of weeks’ time by me.  I struggle to see, at the moment, its relevance to the best interests of this child that the maternal grandmother asserts, let alone its relevance to the purposes of the legislation more broadly described.  I will await with interest to see how those matters transpire on 22 October. 

24. I note further that an application will be made by the Department of Communities (Child Safety Services), also to be heard by me on 23 October in respect of the child as well as an application by the mother, also to be heard on that day, that the maternal grandmother, be declared a vexatious litigant.

25. In the circumstances just described, it seems to me that there is no evidentiary foundation for making the orders sought with respect to the tape apparently produced pursuant to subpoena and currently held in the Sydney Registry of this court. 

26. Whether expressed as an alternative application or not, I would need, myself, to have compelling evidence of a rare and exceptional kind before I would countenance a 13-year-old child giving evidence in a court conducted by me.

27. No such evidence, or any evidence remotely like the evidence that would be required, is offered by the maternal grandmother in support of that application. 

28. Each of the applications by the maternal grandmother is dismissed.

29. An oral application is made by the maternal grandmother.  It is “That something be done about” a transcript.  I have not the slightest idea what the maternal grandmother is talking about and I refuse the application.

30. I will reserve costs of all parties.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  20 October 2009