Damiani and Damiani

[2011] FamCA 556

FAMILY COURT OF AUSTRALIA

DAMIANI & DAMIANI [2011] FamCA 556

FAMILY LAW – PROPERTY – application to discharge order allowing findings by another judge from the parenting hearing to be admitted in the property hearing – where husband asserted additional information demonstrated earlier findings improper or erroneous – where it could not be demonstrated that a conclusion based upon that assertion was justified.
FAMILY LAW – CHILDREN – where husband sought to discharge final parenting orders which he had unsuccessfully appealed – where it could not be said that additional information would have changed the earlier conclusions about family violence – where a significant change in circumstances was not established – where it was not in the best interest of the child to embark on a new full hearing

Family Law Act 1975 (Cth)

Kennon and Kennon (1997) FLC 92-971
Rice v Asplund (1979) FLC 90-725

Marsden v Winch (2010) 42 Fam LR 1

APPLICANT: Ms Damiani

RESPONDENT: Mr Damiani

FILE NUMBER: SYF 4576 of 2004

DATE DELIVERED: 20 July 2011

PLACE DELIVERED: Sydney 

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 February 2011

DATE OF LAST SUBMISSION: 16 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Knox

SOLICITOR FOR THE APPLICANT: Dettmann Longworth

COUNSEL FOR THE RESPONDENT: Mr Fox

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls

Orders

1. The husband’s application filed 8 November 2010 be dismissed.

2. The applications for final parenting orders contained in the husband’s Amended Response filed 21 July 2010 be dismissed.

3. The matter be listed for further directions on 25 August 2011. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Damiani & Damiani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4576 of 2004

Ms Damiani

Applicant

And

Mr Damiani

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Final parenting orders were made by Rose J on 19 December 2008 after a defended hearing.  His Honour made findings about the husband’s violent conduct towards the wife during the marriage.

2. The final stage of the property proceedings between the parties is to be heard before me.

3. The mother asserts that the husband’s conduct is relevant in the property proceedings, in the way described in Kennon and Kennon (1997) FLC 92-971.

4. On 19 March 2010 I ruled that, subject to any argument about relevance, specific factual findings about the husband’s behaviour made by Rose J were admitted in the hearing before me in respect to the alteration of the property of the parties. In an application dated 21 July 2010, the husband seeks that those orders made on 19 March 2010 be set aside.

5. The husband’s application is based on additional information about two matters that the husband says demonstrate the findings of Rose J were based on evidence which was given improperly or erroneously; that the findings were obtained improperly and consequently, issue estoppel should not apply. The husband further says that the additional information undermines credit findings made by Rose J and makes unsafe Rose J’s findings of fact.

6. The two matters relied upon by the husband are:

   6.1.Evidence that the husband had presented the wife with a draft financial agreement in September 2003.  The husband claims this is contrary to evidence given by the wife at the hearing.

   6.2.Information that the husband obtained after the hearing before Rose J and the appeal before the Full Court against His Honour’s orders, from a Constable H from the NSW police that the husband asserts contradicts the wife’s evidence given at the hearing.

7. The husband has also sought to discharge parenting orders made by Rose J and have another hearing about parenting issues. This is based upon:

   7.1.The additional information referred to in paragraph 6.

   7.2.The assertion that there has been no reported concern about the father’s behaviour since Rose J made his parenting orders.

APPLICATIONS

1. In his Application of 8 November 2010 the husband seeks that my order of 19 March 2010 relating to the use of Rose J’s factual findings, be discharged.

2. In his Amended Response of 21 July 2010, the husband seeks a new hearing of the parenting proceedings and a discharge of orders made by Rose J of 19 December 2008.

SHORT HISTORY

1. The husband and wife cohabitated from the date of their marriage in April 2003 for a period of approximately 19 months. They subsequently separated on 2 November 2004. During the period of the marriage, two children of the wife’s former marriage, M born in August 1993 and S born in September 1995 lived with the parties.

2. There is one child of the marriage, N born in August 2004 who is now aged 6. 

DOCUMENTS RELIED UPON

1. The husband relied upon the following:

   12.1.Amended Response to Initiating Application filed 21 July 2010;

   12.2.Application in a Case filed 8 November 2010;

   12.3.Husband’s affidavit of 8 November 2010;

   12.4.Document bundle entitled ‘Matters to be Dealt With on 23^rd February 2011’ which includes correspondence between the parties’ lawyers;

   12.5.Submissions in Response dated 10 March 2011;

   12.6.Proof of Evidence of Constable H (undated);

   12.7.Expert Report of Dr R annexed to her affidavit sworn 2 November 2007;

   12.8.Reasons for Judgment of Rose J dated 19 December 2008; and

   12.9.Documents tendered and made exhibits.

2. The wife relied upon the following:

   13.1.Submissions dated 28 February 2011;

   13.2.Wife’s affidavit filed 10 December 2010;

   13.3.Husband’s affidavit filed 11 April 2008;

   13.4.Affidavit of Katherine Doust filed 2 June 2008;

   13.5.Affidavit of Ms Y filed 22 December 2006;

   13.6.Reasons for Judgment of Watts J dated 19 March 2010;

   13.7.Reasons for Judgment of Coleman, O’Ryan & Le Poer Trench JJ dated 1 December 2009;

   13.8.Excerpted transcript of wife’s cross-examination of 15 December 2008; and

   13.9.File note of Dettmann Longworth Lawyers dated 1 December 2008.

THE PRODUCTION OF DOCUMENTS FROM MR FOWLER

1. On 29 September 2008 the husband issued subpoenas to the former solicitors of the wife and her family (relating to any material about any Financial Agreement between the parties) being:

   14.1.Patrick Grimes and Co;

   14.2.Trevor Fowler, Solicitor; and

   14.3.Goldrick Farrell Mullen.

2. On 1 December 2008 Consent Orders were signed regarding access to those documents. The order provided leave to inspect certain documents.  It also allowed the wife’s lawyers to inspect the documents produced and to separate any documents that may have been the subject of legal professional privilege. On that day the wife’s solicitors inspected the subpoenaed documents, and found that Goldrick Farrell Mullen had produced a bundle of documents from another firm being Trevor Fowler & Associates, with a cover sheet entitled ‘Financial Deed’ (“the Fowler documents”). He has asserted in correspondence that he was uncertain as to whether the Fowler documents were covered by the order granting leave to inspect documents (as it was one firm’s documents produced by another firm) and consequently he placed these in an envelope with other material in respect to which privilege was claimed.  Privilege was also claimed for the Fowler documents.

3. On 3 December 2008 the wife’s solicitors wrote to the husband’s former solicitors advising:

   Finally we note that upon completing the inspection there were some further documents produced which may inadvertently have been not addressed by the Consent Directions. Certainly in relation to those documents a claim of privilege is made on behalf of our client. We have also separated those documents into a separate bundle contained within the Court’s “Privileged” packet so that the issue can be revisited at the final hearing if need be.

4. During the week of 8 December 2008, in the midst of substantial court activity, the wife’s solicitors say that they raised the issue of the bundle of subpoena material with the husband’s former solicitors. The suggestion was made that the court deal with the issue arising in the final hearing. Upon the commencement of the final hearing a week later, no call was made in relation to the further documents. It is common ground that during the hearing neither party referred to the fact that a claim of privilege had been made in respect of the Fowler documents.

5. On 28 June 2010 I ordered that the parties confer with each other and come to an agreement about the privilege still claimed, or forward me a summary of their argument if there was no agreement. The husband’s lawyers inquired about the wife’s position in relation to the privilege claim on 3 August 2010.

6. On 5 August 2010 the wife’s lawyers responded that they had not yet had the opportunity to take their client to inspect the documents. On 20 September 2010, when the matter was before the court, the wife’s lawyers then declared the wife no longer asserted legal professional privilege in relation to the contents of the envelope previously marked as privileged.  I granted leave to inspect the documents in the envelope on that day.

7. On 29 October 2010 the husband’s lawyers wrote to the wife’s lawyers saying that they assumed that both solicitor and counsel for the wife knew at trial what was in the Fowler documents.  The wife’s solicitor has denied any such knowledge.

8. Senior counsel for the husband submits that, it is of great concern that even now, the wife submits that there is no evidence of any misleading conduct or suppression of evidence by anybody on the wife’s side, and that the court should draw an adverse conclusion arising from these submissions being made on behalf of the wife.

9. It seems implicit in this submission by senior counsel for the husband that there is some evidence of misleading conduct or suppression of evidence (implicitly) by the wife’s solicitor. The wife’s solicitor in a letter dated 16 November 2010 has responded to the assertions made by the husband about the proprietary of his conduct, particularly when documents were separated into envelopes on 1 December 2008.

10. Based upon the evidence before me in this application, there is insufficient evidence for me to conclude that the wife’s solicitor was involved in misleading conduct or suppression of evidence and in fact, it is not necessary in the context of the application that is before me, to make any findings about that issue at all. There is nothing to suggest that the wife was involved in any way in what her solicitor did at court on 1 December 2008. The undisputed fact is that the Fowler documents were not referred to during the hearing before Rose J.

11. On the other hand, counsel for the wife submits that no application has yet been made to restrain her solicitors from acting for her. I accept the submission from senior counsel for the husband that this submission by counsel for the wife is a distraction and of no relevance to the application that is before me.

THE EVIDENCE IN MR FOWLER’S DOCUMENTS

1. The Fowler documents consist of:

   25.1.A cover page where the subject matter is described as “Financial Deed”;

   25.2.The wife’s facsimile transmission to Mr Fowler on 3 September 2003 enclosing a “Binding Financial Deed” which had apparently been prepared by or on behalf of the husband.  The wife sought Mr Fowler’s advice regarding that document;

   25.3.Some inconsequential file notes, including one on 3 September 2003, indicating that the husband needed to speak to Mr Fowler urgently;

   25.4.A letter from Mr Fowler dated 4 September 2003 which is a three page advice to the wife relating to the effect of the agreement; the advantages and disadvantages of entering into it; the prudence of entering into it and whether or not the deed was fair and reasonable;

   25.5.A file note that indicates that Mr Fowler had a telephone discussion with the wife on 4 September 2003;

   25.6.A file note recording a telephone conversation with the husband on 4 September 2003. That file note indicates the husband was not happy with the advice Mr Fowler had given the wife; and

   25.7.Mr Fowler’s account to the wife for the work that he did in perusing the financial deed, the discussions he had and the short written advice that he provided.

HOW EVIDENCE RELATING TO THE ISSUE OF THE MOTHER SIGNING A FINANCIAL AGREEMENT WAS DEALT WITH DURING THE HEARING BEFORE ROSE J

1. The wife said in her trial affidavit filed on 10 April 2008 that, because she was fearful for her physical safety at the hands of the husband, she signed a binding financial agreement (“BFA”) in August 2004, just a week before giving birth to their child. She did not mention being given a draft of that Agreement nearly 12 months prior to this.

2. The husband gave affidavit evidence on 10 April 2008 in paragraphs 52 to 55:

   [52] Prior to our marriage, a draft Binding Financial Agreement (BFA) was prepared.

   [53] Although [the wife] agreed to sign the BFA prior to our marriage I did not pursue it at that time.

   [54] Annexed hereto and marked “A” is a copy of the BFA which was signed by [the wife] on 6 August 2004.

   [55] Prior to signing the BFA, [the wife] obtained legal advice. By way of order made by the Family Court in May 2005, a copy of which is marked with “B” and attached, I consented to the BFA being set aside.

3. On 16 December 2008 the wife was cross-examined about the BFA. The relevant extracts are attached to the husband’s affidavit of 8 November 2010. I set them out and I have inserted my comments into the transcript in bold:

   …

   Madam, in relation to the binding financial agreement, it is fair to say, isn’t it, that when you went to see Ms Doust about that in August that wasn’t the first draft of a binding financial agreement that the firm produced, was it? ---No, that was the first.

   It wasn’t the first?  --- It was the first

   This answer by the wife is misleading. There had been a document that the wife had been given in September 2003.  The husband concedes however that this first document and the document the wife took to Ms Doust were essentially in the same terms (that is, the document the wife signed was essentially the first draft).

   It was the first, right. You and [the husband] had discussed the entering into a binding financial agreement even before you got married, hadn’t you? ---Yes

   And [the husband] produced a draft of such an agreement, didn’t he? --- No, we had a discussion over the phone.

   The assertion by counsel for the husband that a draft of an agreement was available to the wife prior to the marriage is incorrect. The wife’s response that no such draft was available prior to the marriage is correct.

   Over the phone?  ---Yes

   Do you say that at no time prior to your marriage did you ever see a document that you understood to be a draft of a binding financial agreement? --- From my recollection, no, because we had the discussion over the phone and I said I was not signing an agreement.

   When do you say you first saw a draft of any such document? --- I can’t recall. It was in 2004.

   Before or after you were married do you think? ---After.

   The wife’s recollection that it was after the marriage is correct. The wife’s guess in the previous answer that it was in 2004 was incorrect. It was in 2003.

   After, all right, And you ultimately went to see Ms Doust about such an agreement did you?  --- Correct.

   Had you seen any other solicitor about a draft of an agreement at that time? --- I had seen Trevor Fowler.

   And you saw Trevor Fowler taking with you, did you, a draft of the document produced by [the husband]?  --- Yes.

   How long did you see Mr Fowler with the document before you saw Ms Doust? ---  I can’t recall.

   Weeks, months, days? --- I honestly, I can’t recall

   Could I suggest to you there may have been a period of months, perhaps many months, between these two visits to solicitors? --- I can’t recall.

   It wasn’t the day before you went to see Ms Doust was it? --- Honestly it’s years ago now, I can’t recall.

   Madam you would remember, wouldn’t you, taking a document to a solicitor one day and then taking the document to another solicitor in a short space of time, that’s something you would remember isn’t it? --- Yes, I presume. I can’t recall, I can’t recall. I do recall seeing Trevor Fowler and…

   The wife remembers seeing Mr Fowler but not when she saw Mr Fowler.

   And I am suggesting to you that was many months before you saw Ms Doust? --- From my collection I don’t know.

   The wife does not remember the period of time between seeing Mr Fowler and seeing Ms Doust.

   It wasn’t the case, was it, that the agreement was produced one day and [the husband] was sending you off to a solicitor to have it signed and it was signed in a very short space of time. That wasn’t the position was it? --- With Katherine Doust, yes, yes, from my recollection.

   The draft that you took to Ms Doust was very similar to the draft you took to Mr Fowler, do you recall that? --- No, I don’t.

   I would like to suggest to you, madam, that rather than being pressured by [the husband] into signing any binding financial agreement you were quite happy to sign the document? --- I was not.

   …

4. The wife’s counsel, in court on 16 December 2008 also questioned the husband in relation to the BFA. I note most questions were about the intention behind the BFA and the pressure involved in having the wife sign it, however Ms Knox did ask the following questions involving the timing of the BFA (and again, I have added comments in bold):

   At that time she was nine months pregnant, she was a couple of weeks off giving birth wasn’t she? --- No we had the discussion about the binding financial agreement maybe a month or two before that, and that was the second time we had the discussion. We first had a discussion about a binding financial agreement after she broke off the engagement, and we got back together again after three weeks, and she was doing the same thing then; she wasn’t talking to me or whatever. Then I got in contact with her parents and her parents organised for us to meet, and got us back together again. But then shortly after that again she threatened to break off the relationship, and then got back together again. You know, we sorted the problem out, and at that stage is the first time I brought up the binding financial agreement. She got – I prepared a draft, I gave it to her, she went to Trevor Fowler to get advice. Fowler gave her advice saying this isn’t in your interest, don’t sign it, and I let it go, until she was pregnant and still threatening to walk out on me, in which case I said, “Well are you in it for money or are you in it for me?”

   …

   It’s the case that she was nine months pregnant, she was a couple of weeks off giving birth, she went to see Trevor Fowler and he said not to sign it and she came home? --- Sorry, I was not aware that she went to see Trevor Fowler the second time. She went to see Trevor Fowler before we got married. If she did go to see Trevor Fowler after the marriage I wasn’t aware of that.

   Isn’t it the case she went to see Trevor Fowler the day before she made the appointment at Patrick Grimes, or the day before she went to Patrick Grimes? --- I’m not aware of that.

   The last two questions by the wife’s counsel are based upon a false premise. Some confusion may have been caused as a result of a letter received by the wife’s solicitor from Mr Fowler in which he said the wife saw him in September 2004 (although as the husband’s lawyer points out, the BFA was signed in August 2004). As is clear from the cross examination of the wife quoted above, she said she did not recall when she saw Mr Fowler. 

   You were aware that Trevor Fowler had told her it was not in her interests to sign, weren’t you? --- That was back in 2002 when she showed me a letter, before we got married, to that effect. As I said, at the time I let it go.

   This answer by the husband is incorrect.  The first BFA was not prepared by the husband before the marriage. The wife saw Mr Fowler and the husband spoke to Mr Fowler in September 2003, five months after the marriage.

   Then you’re aware that the topic came up again when she was nine months pregnant, and you started telling her she had better get another solicitor to sign it the next day, or don’t bother coming come? --- No, that’s – as I said previously, the conversation about the second binding financial agreement occurred at least a month before she actually signed it, and I never used those terms, or said those things to her. I never threatened ---

   …

1. In final submissions regarding the husband’s credit, following the listing of other topics where the husband’s credit was questioned, counsel for the wife said:

   The evidence he gave particularly in relation to the signing of the BFA in relation to the wife, and in relation to when he signed the BFA, brought no credit to him either.

2. Judgment was delivered on 19 December 2008.

ROSE J’S JUDGMENT OF 19 DECEMBER 2008

1. In relation to the violence alleged against the husband, Rose J accepted those allegations. The basis of his acceptance was outlined in paragraphs, including 64 to 76. The bases were:

   32.1.the common assault conviction charge (in relation to the incident of 1 November 2004) which was found proved but ultimately, after an appeal to the District Court, had the conviction ‘not recorded’;

   32.2.the statement by the husband about his conduct on 1 November 2004, which was initially inconsistent with the full statement of facts provided at the local court hearing, became consistent when pressed during questioning;

   32.3.photographs from the incident on 1 November 2004 showing severe bruising to the wife’s left arm, left leg and left buttock;

   32.4.the report of the independent expert, reporting the children’s recollections of violence, and concluding that although the children may have been encouraged to disclose those events, there is nothing to say they fabricated them;

   32.5.evidence from the mother’s counsellor who concluded that the wife has suffered from post traumatic stress symptoms;

   32.6.the file of the husband’s ex-business partner who detailed the husband’s abusive behaviour towards other employees;

   32.7.hearing the parties being tested about the detail of particular alleged events; and

   32.8.an assessment of the general credit of each of the parties.

2. In relation to the credit of each of the parties, the wife was found to be of sound credit given that:

   33.1.she was not shaken as to the contents of her affidavit evidence, though it may have been unclear in places. I note in passing one of those places was her memory about when she saw Mr Fowler;  

   33.2.her manner and the answers she gave;

   33.3.the graphic detail provided in her affidavit material is “plausible in every respect”; and

   33.4.her story was supported by corroborative evidence (referred to above).

3. In contrast, the husband was assessed to be an unreliable witness given that:

   34.1.he “feigned a lack of memory” regarding his former business partnership;

   34.2.he failed to volunteer evidence consistent with the “Statement of Full Facts” from 2004 that he agreed to at the time; and

   34.3.the evidence the husband gave about why he insisted the BFA be signed in August 2004.

4. In paragraphs 94 to 100 of the judgment Rose J deals with the circumstances surrounding the “ultimate” signing of the BFA, and refers to the wife’s evidence she was pressured into doing so.

5. Whilst Rose J did not specifically refer to it in his judgment, he had before him important evidence from the lawyer the wife saw, Ms Doust, when she signed the BFA. Ms Doust provided His Honour with unchallenged independent evidence.  She was not required for cross examination. Ms Doust gave the following evidence:

   36.1.On 5 August 2004 the wife attended upon a conference with her. The wife was pregnant and appeared to be very close to full term (Ms Doust estimated the wife was 39 weeks pregnant). Throughout the attendance the wife appeared to be distressed.  She was flushed in the face, agitated and teary. The wife told Ms Doust, “my husband insists that I sign the deed” and “I need to sign it to keep the peace with my husband” and “I have to sign the deed”. Ms Doust gave evidence that the wife told her that she did not know the value of her husband’s assets;

   36.2.After a lengthy conference, Ms Doust made alterations to the original format of the agreement. The original agreement provided that there would be no ability for the wife to seek a review of the terms of the document until the twelfth anniversary of the date of the document and in the conference on 5 August 2004 and upon the wife’s instructions, that time frame was changed by Ms Doust back to seven years; and

   36.3.On 6 August 2004 the wife attended Ms Doust again. Ms Doust says that on that occasion the wife appeared more distressed than she had been on the previous day. She had with her a copy of the document in its original form. Ms Doust said she was crying for much of the attendance and appeared very troubled. When Ms Doust tried to talk to her about the document, the wife said to Ms Doust, in an insistent tone of voice, “I just have to sign it”. The wife signed the document with the original twelve year review period in it and Ms Doust witnessed the wife’s signature and signed the accompanying certificate.

6. On 28 September 2004 Ms Doust prepared a letter to the wife. That letter was written by Ms Doust to the wife to confirm the background to the circumstances in which the deed was signed and the certificate provided. Ms Doust says in the letter that on 6 August 2004 when she noted that the wife was emotionally troubled, distressed, distraught and in her view under considerable pressure, she was anxious not to add to that pressure by refusing to provide a certificate. She further says that she delayed writing the letter to the wife immediately after the conference on 6 August because she did not wish to add to the wife’s concerns and pressures over the period of the birth of her child and the first weeks of its life.

7. This unchallenged evidence, which is substantially consistent with the wife’s version of the circumstances at the time the agreement was signed, provides an ample basis for accepting the wife’s evidence that she was pressured into signing the BFA.

8. In addition, what concerned Rose J was the unlikely nature of the husband’s evidence that the purpose for having the wife sign the BFA was to show him that she was committed to their marriage and was there for love, not money. Rose J found this excuse entirely unbelievable.

9. Whilst the existence of advice from Mr Fowler was referred to in evidence, Rose J did not refer to it in his Reasons.

THE EFFECT THE FOWLER DOCUMENTS MIGHT HAVE HAD ON THE OUTCOME

1. The question arises as to what reasonable assumptions could be made about what effect the availability of the Fowler documents would have had on the course of the hearing and the effect upon His Honour’s reasons.  The material discloses that:

   41.1.In 2003 the wife was apprehensive about signing the document;

   41.2.Mr Fowler gave her a detailed written advice which concluded with the recommendation that she should not sign the agreement;

   41.3.The wife showed that written advice to the husband; and

   41.4.The husband telephoned Mr Fowler in September 2003 and complained, “about the manner by which I (Mr Fowler) had written the letter” (to the wife).

2. What the Fowler documents actually indicate is that less than twelve months before the wife ultimately signed the BFA, the wife on independent legal advice had refused to sign a similar document to the one which the husband now wanted the wife to sign in the ninth month of the her pregnancy.

3. It is arguable that had the undisclosed material been available at the trial, it would have only strengthened His Honour’s view about the husband’s insistence in August 2004 that the wife sign the agreement.

THE PROOF OF EVIDENCE OF CONSTABLE H

1. The other piece of “new” information upon which the husband seeks to rely is a proof of evidence from Constable H which is contained in annexure E to the husband’s affidavit of 29 October 2010.

2. I am asked by the husband to assume, for the purpose of this application, that the police officer would come to court and give evidence in accordance with the proof of evidence. The proof of evidence is not signed by the police officer nor was he called to give evidence in this hearing. The wife objected to its use. There is some merit in the objection. 

3. This was an issue that was dealt with in the husband’s unsuccessful appeal in relation to Rose J’s judgment. The husband complained he had not been given an opportunity to call Constable H as a witness. The Full Court dealt with this aspect of the husband’s appeal at paragraphs 108 to 117 of the Full Court’s judgment delivered on 1 December 2009.

4. At paragraph 108 of that judgment, the Full Court comment that at the time of the trial what Constable H might have said was not known to those representing the husband or if it was known, it was never communicated to Rose J. Further, even at the time of the appeal some eight months later (see paragraph 116 of the Full Court’s reasons), no application was made for leave to adduce evidence from Constable H. At paragraph 113, the Full Court questioned how Constable H could have given any evidence capable of impacting upon the probabilities as to whether or not the husband had engaged in violent and/or abusive behaviour as alleged by the wife. The Full Court at paragraph 114 comments that it was not suggested that Constable H was present at any time when the husband “behaved” in the way complained of by the wife.

5. Notwithstanding the objection, in the context of this application, I will accept the second hand hearsay evidence of the husband, that his solicitor obtained this proof from Constable H.

6. The husband says in his affidavit at paragraph 8(p) filed 8 November 2010 that if Constable H gave evidence “in accordance with the proof of evidence adopted by him, contradicts the evidence given by my wife to His Honour Justice Rose”.

7. It is unclear to me, however, what contradiction is asserted. The wife in her submissions (at paragraph 27) concedes that she gave evidence at the hearing before Rose J that she did not see the full facts. Constable H says in his proof of evidence “I cannot recall whether [the wife] saw the Agreed Fact Sheet”.

8. If the inconsistency is that the facts as found by Rose J are inconsistent with the fact sheet handed to the Local Court, that is clearly so.

9. Rose J records at paragraph 60 of his judgment his findings as to what happened on 1 November 2004 in the following terms:

   On 1 November 2004, an argument developed between the parties in relation to who might be the godparents of the child.  The husband then assaulted the wife.  He punched her on the arm and kicked her legs and on the bottom.  He then pressed her head against the floor causing pain.  He shouted at her and claimed he had the right to do what he did

10. Rose J had the fact sheet in evidence before him and knew that the facts upon which the husband was found to have assaulted the wife on this occasion were limited to:

    53.1.Yelling at the wife;

    53.2.Continuing to yell at the wife;

    53.3.Becoming more angry and grabbing the wife by the arm;

    53.4.Pulling the wife down;

    53.5.Causing the wife to fall to the floor;

    53.6.Slapping the wife on the buttock with an open hand.

11. The fact sheet goes on to record that the wife had bruising to her arm and leg caused from the incident and that she attended a local doctor because of those injuries.

12. The cross examination of the wife in relation to matters which are relevant are as follows:

    You are not suggesting, ma’am, the police either just didn’t consult you at all about a document being tendered to the court or are you? – No, the police kept coming in

13. The wife then said:

    And all I recall is that they said agree to a lesser charge.  I don’t know whether that meant some sort of – because there were two assault charges and I thought that’s what it meant because they said, you know, that will get you your AVO, that’s what you need to protect you and that’s my recollection.

14. There is force in the submission made by counsel for the wife that:

    Even if the wife had adopted the full facts that were handed up in court, it is highly unlikely that this Court would find that the wife believed that this was some sort of admission that that was what had actually happened on 1 November 2004. The wife was unrepresented at the court. It is common ground that she didn’t go into the court room.

15. It would have still been more than open to His Honour, as he did, to have accepted that the statement made by the wife to the police on 3 November 2004 was likely to represent a more accurate version of what happened on 1 December 2004 (given all the other evidence in the case) than a modified set of facts created at a Local Court in the context of a plea bargain.

16. I note in passing that in the statement that Constable H had signed on 15 December 2004 and in the fact sheet, he records that when he first met the wife to take her statement on 3 December 2004, she told him that she did not want her husband to be charged, for what she said he had done. The decision to charge the husband with assault seems to be that of the police.

17. Looking at Rose J’s judgment, the relevant paragraphs are 74 – 76, 85 – 87 and 91. His Honour does not refer to any inconsistency between the fact sheet and the wife’s version. In paragraph 75 His Honour commented the husband had to be pressed in cross examination before he agreed that he had assaulted the wife in the way that was disclosed in the “Statement of Full Facts”. Further, at paragraph 76, His Honour comments that a witness called on behalf of the husband related what the husband had told him about the incident on 1 November 2004 in a way which minimised what happened when compared to what the husband had agreed to in the ‘Statement of Full Facts”.  At paragraph 85, His Honour comments that the evidence of that witness, the Statement of Full Facts and the photographs were inconsistent with the husband’s initial evidence about what he had done to the wife on 1 November 2004.  His Honour drew adverse inferences of credit against the husband in that regard and had explained why he was entitled to do so.

CONCLUSION

1. Senior counsel for the husband submits that it would have been very unlikely that Rose J would have come to the conclusions that he did about the conflicting evidence of the husband and the wife about the circumstances in which the wife ultimately signed the financial agreement and about what happened on 1 November 2004, had His Honour had the benefit of the Fowler documents and Constable H’s statement.

2. Senior counsel for the husband points to the reference in Rose J’s reasons to the wife not being clear on some aspects of her affidavit evidence and submits with the addition of the Fowler documents and Constable H’s statement, it is likely that His Honour would have formed a different view of the wife’s lack of clarity and forgetfulness throughout the evidence.

3. I am unable to accept those submissions.  Whilst I agree that Rose J formed views about the credibility of the wife and the husband, I do not accept that it is likely that His Honour would have formed the view that the wife was not a credible witness had the information in the Fowler documents or in Constable H’s statement been available, nor do I accept that it is likely that His Honour’s view of the reliability of the husband would have changed as well. 

4. Senior counsel for the husband submits that even now, presented with the new evidence concerning the financial agreement “….the wife denies any memory of the earlier financial agreement”. That misstates the wife’s evidence.

5. Consistently with the unchallenged evidence of Mrs Doust about the wife’s distress at the time, the wife’s affidavit of 10 December 2010 says:

   I still have no memory of there being that gap attending the separate offices of TF and Doust. I recall being extremely distressed. Even today, having read the documents of GFM and TF, it still feels like one set of events.

6. I am unable to conclude that had the Fowler documents been available at the hearing His Honour would have reached a different view about the incidence of family violence that took place between the parties. 

7. I am unable to conclude that the unsworn statement of the police officer would have materially altered the view that Rose J had taken about the incidence of family violence that took place between the husband and wife on 1 November 2004.

8. Consequently, the husband’s application that I set aside the order that I have made allowing the wife to rely upon specific factual findings made by Rose J, subject to any argument about relevance, will be dismissed.

THE FATHER’S APPLICATION FOR NEW PARENTING ORDERS – THE RICE & ASPLUND ISSUE

The law to be applied

1. The relevant passage from Rice v Asplund (1979) FLC 90-725 is well known. The Court in that case said:

   It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change is an ever present factor in human affairs.  Therefore the Court would need to be satisfied …..  there is some changed circumstance that will justify such a serious step, some new factor arising or at any rate some factor which was not disclosed at the previous hearing which would have been material.

2. The law that I am to apply is conveniently discussed by the Full Court in Marsden & Winch (2010) 42 Fam LR 1 at paragraphs 40 – 56.

DISCUSSION ABOUT THE RICE & ASPLUND ISSUE

1. Both parties proceeded upon the understanding that this part of the controversy would proceed by the parties filing the evidence upon which they wished to rely and then make submissions.

2. After a fully contested hearing, Rose J made final parenting orders on 19 December 2008. The husband now seeks to vary the orders made by Rose J and applies for new final parenting orders in his Amended Response filed 21 July 2010. 

3. Part of what the husband seeks to do is to overturn Rose J’s order which gave the wife sole parental responsibility for the child N.

4. In paragraph 105 of Rose J’s judgment His Honour found that the presumption of equal shared parental responsibility was rebutted, based upon the existence of family violence.

5. The husband continues to challenge the wife’s evidence in relation to family violence.

6. The wife submits that the husband has to satisfy the threshold test in Rice & Asplund and must show a significant change in circumstances between the hearing in December 2008 and the current time.

7. Senior counsel for the husband first points to those s 60CC(3) factors which Rose J found were favourable to the husband. I accept that Rose J was satisfied that the child had an attachment to the father, a loving relationship with the father, the father had a willing parental attitude, there were no practical difficulties or financial reason why the relationship between the child and the father could not be maintained and that the father could provide for the physical and intellectual needs of the child.

8. In his affidavit material, the principle change relied upon by the husband is the effluxion of time and the fact that the child N was 4 when the orders were made and is now aged 6. 

9. The husband submits that there is nothing that has been raised by the wife in her primary affidavit of 8 February 2011 that would identify any difficulty associated with the father spending time with the child, the father’s conduct towards the child, or anything to suggest that the child does not enjoy and benefit from the time he spends with his father. It is the father’s assertion that “given the effluxion of time, the wife’s fears clearly no longer have any foundation”.

10. The husband points to the effluxion of time without there being any evidence of anything of a violent or coercive nature happening as either an indication that Rose J was in error or a significant change. 

11. Rose J made strong findings about the history of family violence. This led to there being concerns about the father’s ability to provide for the safety and emotional needs of the child and affected the mother’s attitude towards the time that the child would spend with the father.

12. The risk to the child N in his father’s presence was identified by Rose J in his reasons, particularly at paragraphs 114 to 117. At paragraph 117 Rose J said:

    However, it is the underlying causes of his [the husband’s] behaviour that clearly need to be addressed. That can only be addressed by the husband engaging in therapy with a psychiatrist or psychologist, according to the evidence of [Dr R] which I accept.  That will only succeed if it is approached by the husband on a voluntary basis.  It is a matter for him as to whether he does so.  Time will tell.”

1. Further, Rose J at paragraph 126 refers to the possibility of the husband receiving “appropriate professional advice and treatment with regard to his long standing issues in relation to the control of his temper and propensity for abusive conduct to others. That is particularly so in circumstances where the husband may be feeling stress or pressure associated with work, or dealing with the child, or for any other reason”.

2. At paragraph 129, whilst His Honour suggests that the parties might reassess once the child has commenced school, His Honour goes on to say the husband, if he chooses to do so, may “allay the wife’s anxiety by providing her with a report from a psychiatrist or psychologist in relation to successful therapy. That, of course, was entirely a matter for him and is not the subject of any order that I will make. I have accepted Dr R’s evidence that the success in therapy will require the husband to voluntarily undertake such therapy”.

3. As counsel for the wife points out, the father has not adduced any evidence that he has ever attended any psychologist or psychiatrist between when Rose J published his reasons and the current time.

4. In fact, it is quite clear that the husband does not accept Rose J’s findings in relation to family violence. The husband gives evidence in his affidavit filed on 8 November 2010 that “I have been aggrieved by the findings of His Honour Justice Rose. It is my submission to the Court that the findings are wrong and are unsafe”.

5. This assertion comes in the circumstances where the husband unsuccessfully appealed the orders made by Rose J.

6. The husband, having been unsuccessful in appealing the orders of Rose J, now wishes to challenge the “practicality and reality of the foundation for making such orders”.

7. Senior counsel for the husband submits in relation to the reopening of the parenting case, that “had his Honour had the benefit of the new evidence, then rather than disregarding the husband’s evidence, it is likely that, he would have better understood the husband’s evidence and taken a different view of the reality of the husband’s evidence against the evidence of the wife”.

8. That submission is based upon the assertion that the Fowler documents and Constable H’s draft proof of evidence fundamentally undermines the findings of Rose J.  For reasons that I have already explored, I am unable to conclude that the “new” evidence would have materially changed Rose J’s findings and the conclusions he drew from those findings.

9. A full rehearing would involve further interviews with the child N along with the wife’s other two children and would put the wife under considerable further stress in circumstances where, in Dr R’s opinion, she has post traumatic stress symptoms.

10. I find that on the basis of the evidence led by both parties, there is insufficient evidence to establish that there has been a significant change in circumstances that would justify a re-running of a hearing in relation to parenting orders in respect of the child N.

11. In circumstances where reopening the case would involve a full hearing of the issues in relation to family violence, I do not find that any matter raised by the husband in evidence legitimises that course. 

12. The paramountcy principle (s 60CA Family Law Act 1975 (Cth)) applies. The interests of the child N in not being the subject of further litigation more powerfully protects his welfare than to allow the application to continue. The child N should be spared the stressful and conflictual effects of the proposed new litigation about him.

13. Accordingly, the applications for final parenting orders contained in the husband’s Amended Response filed 21 July 2010 will be dismissed.

14. I otherwise list the matter for further directions on 25 August 2011. 

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 July 2011.

Associate: 

Date:  20 July 2011