De Silva and Rogers (No. 2) - [2014] FamCA 1034

FAMILY COURT OF AUSTRALIA

DE SILVA & ROGERS (NO. 2)

[2014] FamCA 1034

FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of evidence – whether a transcript of judgment in the District Court is admissible – whether it is relevant to the parenting proceedings – whether these are exceptional circumstances under s 69ZT(3) – evidence is admissible and relevant.

Family Law Act 1975 (Cth) s 69ZT
Evidence Act 1995 (Cth) ss 91, 135, 142

Blan & Faulconer Blan [2014] FamCA 878
Maluka & Maluka [2012] FamCA 373

APPLICANT:

Mr De Silva

RESPONDENT:

Ms Rogers

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

5187

2008

DATE DELIVERED:

6 November 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

6 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

COUNSEL FOR THE RESPONDENT:

Ms Goodchild

SOLICITOR FOR THE RESPONDENT:

Matthew Folbigg

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

The document which is Annexure “N” in the father’s affidavit, the transcript of the judgment of the District Court of New South Wales is admitted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym De Silva & Rogers (No. 2) 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 PARRAMATTA

FILE NUMBER: PAC 5187 of 2008

Mr De Silva

Applicant

And

Ms Rogers

Respondent

REASONS FOR JUDGMENT

Introduction

In these parenting proceedings, a question has arisen in relation to particular evidence which the father seeks to rely on and which the Independent Children’s Lawyer also seeks to have admitted. The mother objects to the evidence and says that it is irrelevant or says in the alternative that the Evidence Act1995 (NSW) should apply, which would have the effect it is submitted, that the evidence would be excluded by operation of section 91 of the Evidence Act.
In the ordinary course under section 69ZT(1) of the Family LawAct 1975 (Cth), certain provisions of the Evidence Act do not apply to child-related proceedings which means that the fact in issue is not required to be proved by evidence in accordance with the Evidence Act.
In relation to this particular evidence, the mother seeks to rely upon section 69ZT(3) which provides that a court may decide to apply one or more provisions of the Evidence Act which are otherwise excluded, in circumstances which the Court is satisfied are exceptional and a number of other specific matters set out in this section have been taken into account.
The mother contends that these circumstances are exceptional in relation to the particular issue in question and having regard to the matters set out in this section and other matters, the Evidence Act should apply to this evidence and she submits that the effect would be that the evidence would be excluded.
The father and the Independent Children’s Lawyer both contend that the evidence is relevant and the circumstances are not exceptional and the evidence should be admitted under section 69ZT(1).

Background

The proceedings concern V (“the child”), a little girl eight years of age. The child’s parents, who were never married, also lived together for virtually none of the child’s life and physically separated when she was an infant.
Since that time the child has lived with her mother and spent time with the father under various parenting regimes.
When the child was five, the then prevailing arrangements were that she spent time with her father each Tuesday from after school from 3.30pm until 7.00pm and each alternate weekend from 9.30am Saturday until 9.30am Sunday.
The child’s father at the time lived with his elderly parents and currently lives with his mother, his father having passed away.
On 20 September 2011 which was a Tuesday, the father spent time with the child and the father says this time together was uneventful, though the parents, as I understand it agree, that the child complained of a stomach ache at the end of that time together.
On the following weekend, the child spent time on Saturday, 24 September 2011 and overnight on Saturday with her father until she was collected by the mother the next morning and the father says that the time together was uneventful.
The parents do agree, however, that the child was reluctant to go over to her father at the beginning of that time together when she was in the presence of the mother.
The mother says that at the end of the time together on 25 September the child was not in clean clothes (and I am summarising the case in very, very brief terms just simply to put some context to the application) and when asked later about why she was not in clean clothes, the child said “I don’t want to get undressed in front of daddy [an abbreviation of the father’s given name]” and then went on to say “because he licked my fanny” or “fanty”. The child also alleged on that day that the father had done some other things but that was the main substance of that complaint.
The mother cancelled the child’s time with the father on the next occasion which was 27 September 2011.
There is no dispute that on 30 September 2011 the child participated in an interview with the officers of JIRT, which is a joint Community Services and police specialist team which investigates allegations of sexual abuse against children. In the course of that interview, the child disclosed that on a day which appears to be 20 September 2011 while watching a movie at the father’s home the father forced the child to stand up and licked her on the genital area and digitally penetrated her anus. In the course of the event the child said that her grandmother came into the room asked the father what he was doing and when he said he was licking the child, the grandmother told him to stop but he said he had not finished and continued licking her for seven hours.
There was also a second JIRT interview and the child also makes allegations that the father had taken photographs of her naked including of the genital area and put the photographs on the computer which he made the child look at.
The mother then cancelled the child’s time with her father again for the weekend of 8 and 9 October 2011 and the father was at that stage unaware of the JIRT interview or the child’s allegations.
The father first became aware of allegations against him a few days later, about 13 October 2011 when a search warrant was executed on his home and many items including his computer equipment were seized.
The offences with respect to which the police were seeking evidence was sexual assault of a child under ten and possession of child abuse material.
The father subsequently attended a police station, was taken into custody, interviewed and was charged with two counts of sexual assault of a child under ten and a number of counts of possession of child abuse material. He spent about three days in custody prior to being granted bail.
The charges in relation to child abuse material did not relate to any images of the child, as no such images were located on the father’s computer equipment but related to two groups of comic book cartoon images which the police alleged depicted images of children engaged in sexual activities with adults.
The father pleaded not guilty to all offences and with respect to the allegations of the child’s sexual assault, his position was that the event did not occur.
In relation to the cartoon images, as I understand it, his position was that they were not child-abuse material because they did not depict images of children engaged in sexual activities and also that he had not accessed the images.
The father maintains that he has never seen the images and relied upon expert evidence on the matters which he contends.
The father was acquitted of each of the child sex abuse allegations in a jury trial in the District Court of New South Wales and the prosecution was ordered to pay costs.
The child-abuse material trial which had been ordered to be the subject of a separate trial was discontinued by the DPP, though the reasons for the discontinuance at this stage are not known by this Court.
Since the search warrant was executed on the father’s home, the child has only spent time with the father on two occasions both supervised by a supervision service. At that stage, as far as I understand it, the father had not been charged. The father last saw the child on the last of these occasions in December 2011.
On 13 May 2013, when the matter came before His Honour Justice Collier, His Honour made an order for no time between the child and her father. His Honour expressed it then to be at that stage but I understand that no further application for time with the father has been brought.

The evidence in question

The evidence in question is the transcript of the decision of the District Court judge who presided in the criminal trial in which the father was acquitted and which relates to an order that the DPP pay costs as a result of having unreasonably instituted the proceedings against the father.
The first issue that I must consider is whether these are exceptional circumstances. Three of the matters that I am also required to take into account under section 69ZT(3)(b) are of significance in this matter, the fourth being the issue about the extent to which the Court can give an adjournment does not, particularly, seem to be of significance in this matter. The three of significance are the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings and the probative value of the evidence. In nature these proceedings concern whether it is in the child’s best interests to have a meaningful relationship with her father and, if so, what are the appropriate orders to support that relationship.
The evidence in question (that is, that the trial judge who presided over the criminal trial in which the father was acquitted was of the opinion that it was not reasonable for the prosecution to have instituted those proceedings because of inherent weaknesses in the Crown case) is not central or decisive in these proceedings. However, in my view, it may have a significant impact on the best interests considerations such as the capacity of each of the parents to provide for the needs of the child and the attitude to the responsibilities of parenthood demonstrated by each of the parents.
The evidence, as I understand the Independent Children’s Lawyer’s position, which has been clarified this morning, is not being tendered for the purpose of supporting a finding that the allegations of sexual abuse are proved according to the civil standard of proof having regard to matters in section 142(a) to (c).
To some extent (that point having been clarified) Ms Goodchild on behalf of the mother made some different submissions and, in particular, that a different section of the Evidence Act ought to apply, that being section 135. She effectively conceded that if the evidence was not being tendered for that purpose, as made clear by the Independent Children’s Lawyer, that it would not be excluded under section 91.
One of the most critical matters to be determined in these proceedings which goes to the heart of the best interests considerations, is the need to protect the child from harm, from being subjected to or exposed to abuse, neglect or family violence. It is central to the mother’s case, as I understand it, that as the father has sexually abused the child that there is an unacceptable risk and that she will be harmed if she spends unsupervised time with him in the future.
As I previously indicated (and to some extent this is not of the same significance as it was at the start because of the concessions Ms Goodchild made) originally in her submissions it seemed to be assumed that the purpose for which the evidence of the trial judge’s costs judgment was being tendered was to support a finding as to whether or not the sexual abuse was proved or whether or not there is an unacceptable risk that the father would sexually harm the child in the future. If this were the case and I was satisfied that exceptional circumstances exist and ordered that the provisions of the Evidence Act apply, I would agree that the evidence would be excluded under section 91. However, as I understand it, the evidence is not sought to be relied on to prove the existence of a fact that was in issue in that proceeding, that is, whether the father sexually abused the child. It is rather being relied upon as evidence from which the Court may draw inferences about the reasonableness and genuineness of the current beliefs held by the mother in relation to the risk represented by the father and concerning her behaviour subsequent to the father’s acquittal.
Inferences about the reasonableness and genuineness of current beliefs held by the mother are also relevant to her capacity and attitude to the responsibilities of parenthood and, in particular, her capacity of supporting the child in having a meaningful relationship with her father.
So far as the issue of whether or not the evidence is probative, it was submitted on behalf of Ms Goodchild that the evidence, that is, the cost judgment, is probative of nothing and, in fact as I say, her primary submission especially having understood the purposes for which it is not tendered is that the evidence is probative of nothing and not relevant.
So far as the fact in issue, that is, that it was unreasonable for the prosecution to have instituted proceedings due to the inherent weakness in the case, the judgment is, of course, highly probative as to that fact.
The question then arises as to whether the inferences can be drawn that the Independent Children’s Lawyer and father may seek to be drawn and certainly some of the matters that Ms Goodchild raised today seem to me may be relevant and may be re submitted in relation to whether or not those inferences can be drawn.
However, in relation to the circumstances of this evidence and the specific purpose for which it is being tendered, in my view, there is nothing exceptional about it. It is not the type of case such as those which were handed up such as Maluka & Maluka[1] or Blan & Faulconer Blan[2] where the fact in issue sought to be proved by the contentious evidence was whether or not sexual abuse and domestic violence did or did not occur. In those cases the trial judges were clearly concerned about the reliability of the evidence and the safety of any findings made on the basis of such evidence and in Maluka also the issue of transparency was raised.
[1] [2012] FamCA 373
[2] [2014] FamCA 878
Those are not matters of concern here in the sense that the evidence of the judgment is highly reliable. The matters of significance, in my view, may arise in relation to the inferences that can be drawn from the evidence and in combination with the other evidence concerning the mother’s behaviour and beliefs rather than from the evidence itself.
In my view for these reasons, the circumstances are not exceptional and I do not exercise my discretion to apply section 69ZT(3) to that evidence.
Accordingly, the submissions about whether the evidence ought to be excluded do not apply and the document which is an Exhibit in the father’s affidavit is admitted.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 6 November 2014.

Associate:

Date: 19 November 2014