Culbert & Culbert
[2022] FedCFamC1F 709
Federal Circuit and Family Court of Australia
(DIVISION 1)
Culbert & Culbert [2022] FedCFamC1F 709
File number(s): NCC 1363 of 2021 Judgment of: SMITH J Date of judgment: 6 September 2022 Catchwords: FAMILY LAW – PARENTING – ex tempore - Where a final hearing had been set down to commence on 5 September 2022 – Where the matter involves allegations of sexual abuse by the father on one of the subject children – Where before trial it appeared the DCJ and police investigations of the sexual abuse allegations had been closed – Where during cross-examination of the mother it became apparent that the investigation has been reopened – Where the father made an oral application to adjourn the proceedings until it is determined whether there will be criminal proceedings, or if criminal proceedings are taken until they are determined – Where there was no objection for the adjournment by the mother or the Independent Children’s Lawyer – Adjournment application granted Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 5-6 September 2022 Place: Newcastle Counsel for the Applicant: Mr Bithrey Solicitor for the Applicant: Lucy Urach & Associates Counsel for the Respondent: Ms Gibbons Solicitor for the Respondent: Swifte Law Counsel for the Independent Children’s Lawyer: Mr Bateman Solicitor for the Independent Children’s Lawyer: Sharon Moore Solicitor ORDERS
NCC 1363 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CULBERT
Applicant
AND: MR CULBERT
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
6 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The proceedings are adjourned part-heard.
2.The matter is listed for mention on 1 June 2023 at 9:30 a.m.
3.Liberty is given to the Independent Children’s Lawyer to apply to have the matter relisted if issues arise apart from the Application.
AND THE COURT NOTES THAT:
A.This matter was listed for a final hearing for four days commencing 5 September 2022. The matter involves allegations against the father, that he has sexually abused one of the children who are subject to these proceedings, being Y, aged almost five years old. There has been a Department of Communities and Justice and Police investigation which had appeared to have been closed with no further Police or prosecutorial action. During the course of yesterday’s proceedings it became known that an officer, Mr B, who has previously been involved in the investigation has communicated to the mother that the investigation is against progressing and that he would be in contact with her to advise of further developments.
B.Whilst the father strenuously denies the allegations, on advice he has taken the position that he will exercise his right to silence until the outstanding criminal investigation and any proceedings are determined. On that basis the father sought to adjourn the proceedings.
C.The Court considers this appropriate and prudent advice and action which in no way suggests the consciousness of guilt.
D.Counsel for the Applicant Mother and Counsel for the Independent Children’s Lawyer did not oppose the adjournment of the proceedings.
E.The parties are to advise the Court jointly when they have more information concerning whether or not the Police investigation is going to proceed and whether or not criminal charges are to be filed.
F.The mention date is a holding date.
G.The matter will be given an earlier date for mention as soon as the parties are aware of the likely progress of any criminal investigation.
H.The matter will be given expedition for a final hearing at an appropriate time.
I.The father has foreshadowed an application to appoint a Single Expert to undertake a psychiatric examination of the mother, which is not consented to. The Court will not require an Application in a Case, to keep costs down, and it will be dealt with as an oral application if it is made.
J.The Court will order a transcript of the proceedings of 5 September 2022.
K.If any party would like to relist the matter, they should liaise with the Independent’s Children’s Lawyer.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Culbert & Culbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
This matter was listed for a final hearing for four days commencing before me yesterday.
The matter involves allegations against the father, that he has sexually abused one of the children subject to these proceedings, being Y, who is almost five.
There had been a DCJ and police investigation which appeared had led to closed investigations and no police or prosecutorial action.
During the course of yesterday’s hearing in cross examination of the mother, it arose that a police officer who had previously been involved, had communicated to the mother advising that:[1]
I can advise that the investigation is progressing and I shall be in contact with you to advise of further developments.
[1] Exhibit ICL4.
It’s unfortunate that the legal representatives for the parties and ICL weren’t aware of this matter, which only arose during cross-examination.
While the father strenuously denies the allegations he has been advised that given the existence of an investigation into a serious crime by police, so that there is the potential for criminal proceedings, he should exercise his right to silence until it is determined whether there will be criminal proceedings, or if criminal proceedings are taken until they are determined. I consider that to be entirely appropriate and prudent advice, and it’s adoption by the father in no way suggests the consciousness of guilt.
In those circumstances an oral application was made to adjourn these proceedings. It is most unfortunate that this has occurred, but the mother and the ICL do not oppose the adjournment.
A person who is subject to an investigation by police in respect of a potentially serious criminal matter, conviction for which would be expected to result in a full-time term of imprisonment, is generally entitled to have that other matter dealt with before being required to give evidence and to be cross-examined under oath on the subject matter of the complaint in civil proceedings such as these.
In those circumstances and noting that the adjournment is not objected to, I consider it appropriate to adjourn these proceedings to a date to be determined.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 6 September 2022
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