Commonwealth Central Authority and North
[2018] FamCA 614
•6 August 2018
FAMILY COURT OF AUSTRALIA
| COMMONWEALTH CENTRAL AUTHORITY & NORTH | [2018] FamCA 614 |
| FAMILY LAW – ADMISSIBILITY – application for the admission of late filed affidavit – operation of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – where material admissible but not admitted – where question of procedural fairness raised – where model litigant concedes failure to comply with directions – failure to provide adequate notice – inability to test or contradict material - where admission of material would be procedurally unfair – application refused. |
| Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 14, 29. |
| Department Of Family and Community Services & Magoulas [2018] FamCA 102 Department of Family and Community Services & Padwa [2016] FamCA 215 |
| APPLICANT: | Commonwealth Central Authority |
| RESPONDENT: | Ms North |
| FILE NUMBER: | CAC | 707 | of | 2018 |
| DATE DELIVERED: | 6 August 2018 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 6 August 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Sekler |
| SOLICITOR FOR THE APPLICANT: | Australian Government Solicitor |
| COUNSEL FOR THE RESPONDENT: | Ms R Dart |
| SOLICITOR FOR THE RESPONDENT: | Bazaliza Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDRENS’ LAWYER: | Ms Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDRENS’ LAWYER: | Legal Aid ACT |
Orders
The admission of the material is refused.
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 Commonwealth Central Authority & North 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 CANBERRA |
FILE NUMBER: CAC 707 of 2018
| Commonwealth Central Authority |
Applicant
And
| Ms North |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
In this matter the Central Authority, who is the applicant in these proceedings, seeks to rely upon an affidavit prepared by Mr B and filed in this Court on 3 August 2018. Objection is taken to the admission of the affidavit into evidence. It contains an annexure which is being provided by Ms C, who has previously worked in relationship therapy for the Mother and Father. The precise content of what is contained in the material provided by Ms C has not been identified to me given the objection that was taken of the receipt of the material and, in the absence of an invitation on the part of the parties to review the content of the annexure, it has not become necessary or appropriate for me to examine its content.
In support of the receipt of the material the applicant relies on reg 29, which deals with the evidentiary provisions governing these proceedings. Regulation 29(1) applies the evidentiary provisions to the application before me, this being an application under reg 14 where the applicant is a responsible Central Authority. Regulation 29(2) deals with the admissibility of an application under reg 14 or any document attached to the application, or given in support of that application. Under this category the applicant seeks to admit a document produced by a person who acted as some form of counsellor or therapist for the Father and the Mother. This is the contentious provision at present, I will return to its scope of operation.
The balance of the provisions in the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), in particular regs 29(3), (4) and (6) deal with admissibility and the use of particular classes of documents by either party. Regulation 29(5) makes an extension to the concept of what can be taken into account as a matter of judicial notice in these proceedings.
Returning then to reg 29 (2). Regulation 29(2) is confined in its scope to material which is sought to be admitted by the applicant. It can be the application, it can be attachments to the application and it can be material otherwise provided in support of the application. The operation of reg 29(2) is not open to both parties, an advantage is upon the applicant where the applicant is the Central Authority.
While each of the parties have the benefit of recourse to regs 29(3) to (6) only the Central Authority has recourse to reg 29(2). In Magoulas,[1] Justice Loughnan identified the legislative purpose of this provision in [28] of the judgment and relevantly said:
That provision seeks to ameliorate the same mischief at which the Convention and, in turn, the Abduction Regulations, are partly aimed – the difficulty and unfairness of being required to litigate in a foreign jurisdiction, usually over long distances and often in a different language.
[1] Department Of Family and Community Services & Magoulas [2018] FamCA 102.
His Honour went on to say:
The same latitude is not allowed for the evidence relied on by a respondent. I note however, the allowance in reg 29(3) in relation to the absence of overseas deponents. Of course there remains the capacity and obligation of the Court to weigh the evidence notwithstanding its source.
I have been helpfully referred by Ms Sekler, who appears for the applicant, to the judgment of Justice Le Poer Trench in Department of Family and Community Services & Padwa. At [394] his Honour said:
In my view the reg 29 provisions are clear and are designed to make all of the material provided by the applicant admissible as evidence in the case. Thereafter this court will then apply appropriate weight to the content of the material which has been admitted. The rules of evidence (encompassing all that the expression includes) would then be in the back of the judge’s mind as she/he considers the evidence. Thus weight, in different proportions, would be applied having regard to basic concepts such as relevance and reliability.
That is, in the light of the characteristics of both the Convention and the Regulations an advantage is granted to the Central Authority. The scope of reg 29(2) is broad at its face value. That is, it allows to be admitted into evidence the application and the information contained in the application, along with attached documents, along with those matters which are given in support. That is, the scope includes all documents that are given or put forward by the Central Authority in support. It is not restricted to those that were attached to the application or produced at the time of the application but extends to all that is given in support of the application.
The Regulation also provides what those documents will be admissible for. That is they become admissible as evidence of the facts stated in that application, request or document.
It is notable that the Regulation provides that such documents will become admissible for a particular use. It does not provide that they are admitted, but that they become admissible. That is, they become admissible as evidence of the facts stated within them. If it was the case that the facts stated were not relevant to the proceedings then presumably the Court would be able to exclude the admission of the documents under reg 29(2) as a matter of procedural fairness, as the Court is required not to take into account irrelevant considerations. Under those circumstances, despite the provision of reg 29(2) that they would become admissible, they would not be admitted.
That particular matter does not arise here as the facts I am told relate to a factual aspect of the Mother’s application in so far as it deals with grave risk or intolerable situation as an exception to her return. I am told, and it is accepted, that whatever is contained in the document relates to a central plank of the Mother’s defence in this regard. That is, there is no contest as to relevance.
Prima facie then the documents are admissible and would be admitted by the operation of reg 29(2). However, objection is also taken to the receipt of the documents on the basis of procedural fairness.
A direction was given that the applicant was to file any material it seeks to rely upon in reply, that is in reply to the Mother’s material, by 4pm on 22 June 2018. Here, as is appropriate for a model litigant to do so, it was conceded that whatever the content of the material it is in reply to the Mother’s material and responds to a central plank of the defence that she raises in relation to grave risk or intolerable situation. That is, it was appropriately conceded by the Central Authority that it falls into the category caught by the direction given above. Hence, while the material is admissible the question still remains as to whether or not it should be admitted.
The Mother asserts it is procedurally unfair to do so for a number of reasons and, I should note that there was no issue taken with the reasons that were put forward by the Mother. The first is, is that the material pertains to a central plank in her defence. The second is, she was not on notice that the material would be sought to be adduced until 31 August 2018, although she was on notice in June that the material had been produced to the Central Authority and herself. Further, an affidavit seeking the admission of the material was not filed until 3 August 2018. Further, she has no capacity to test or contradict the material, or to make enquiries for the provision of other material by which it might be tested. Finally, although the Central Authority is currently making enquiries, there is no indication that Ms C would be available for cross-examination for the purpose of testing.
No explanation as to the non-compliance was able to be advanced by the Central Authority. It appears that under the circumstances identified by the Mother, it would be procedurally unfair to allow this material which addresses a central plank in the Mother’s defence, and may contradict that defence, to be placed before the Court without adequate notice having been given to the Mother in the face of directions that provided that that was to occur.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 6 August 2018.
Associate:
Date: 7 August 2018
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