DEACON & DAPHIN

[2013] FamCA 119

FAMILY COURT OF AUSTRALIA

DEACON & DAPHIN [2013] FamCA 119

FAMILY LAW – EVIDENCE – Question as to whether pursuant to s 69ZT(3) of the Family Law Act 1975 the Rules of Evidence apply

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

APPLICANT: Mr Deacon

RESPONDENT: Ms Daphin

INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

FILE NUMBER: ADC 3920 of 2010

DATE DELIVERED: 1 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harley

SOLICITOR FOR THE APPLICANT: Dixon Gallasch Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Lindsay

SOLICITOR FOR THE RESPONDENT: Helen McCane

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McQuade

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adey Lawyers

IT IS ORDERED THAT

1. The provisions of the Evidence Act 1995 (Cth) be applied to the proceedings in accordance with s 69ZT(3) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Deacon & Daphin 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 MELBOURNE

FILE NUMBER: ADC 3920 of 2010

Mr Deacon

Applicant

And

Ms Daphin

Respondent

REASONS FOR JUDGMENT  

1. This is the first day of hearing before me in anticipation of a trial of the matter to be heard if possible in July 2013.

2. The proceedings are in the Magellan List of cases. During the hearing I raised with Counsel for the father, Counsel for the mother and Counsel for the Independent Children’s Lawyer the question of whether s 69ZT(1) should apply or whether the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s 69ZT(1). The position of all parties was that in this case the provisions of the Evidence Act should apply and I agree.

3. In order to apply all or any of the provisions of the Evidence Act which by virtue of s 69ZT(1) do not apply the court must be satisfied that the circumstances are “exceptional” and in determining whether the circumstances are “exceptional” must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order to give a direction in relation to the evidence and any other matters the Court considers relevant.

4. The most significant aspect of this matter, from my perspective, is the very limited nature of the time that the father has spent with the children of the relationship who are now 7 and 5 years of age.

5. The parties commenced cohabitation in or about January 2004 and separated in September 2006. The children were then very young. Separation occurred when the mother fled the matrimonial home because of what she said was repeated physical abuse of both herself and the children, including she said that she had been raped by the father on two occasions. The mother also alleges that the father has sexually abused one of the children.

6. The father for his part alleges that the mother has neglected and physically abused the children and has had multiple partners and has exposed the children to abuse by her partners.

7. The matter has a very significant child protection history with numerous notifications relating to both the father and the mother. The litigation in this Court has also been extensive.

8. Although the father has spent very limited time with the children since separation, the family consultant observed in her report that although resistant to the father, the children soon “relaxed into very comfortable and spontaneous interactions with both him and their paternal grandfather”.

9. It is now agreed that the father should commence spending time with the children on a supervised basis in anticipation of the family consultant preparing an updated report. Arguably notwithstanding that the father is to commence spending time with the children if the Court were to find that the allegations of abuse of the children by the father were substantiated there would have to be some consideration of the long term benefits of the children spending time with the father at all or alternatively on what basis that time might be supervised on an ongoing basis. Similarly, although the children have been living with the mother since separation there are very serious allegations in relation to her care of the children. The evidence with respect to the various allegations is extremely important to the outcome of the case and that evidence is likely to inform the conclusions of the various experts. The evidence that underlies the opinions of the expert witnesses must be reliable.

10. Given the history of this case there are likely to be questions with respect to the probative value of evidence which would except for s 69ZT(1) be inadmissible. I have also had regard to the last of the matters which must be taken into account however the powers of the Court to adjourn the hearing or give a direction in relation to the evidence does not seem to be relevant in circumstances where unless s 69ZT(3) applies the rules of evidence referred to in s 69ZT(1) do not apply.

11. The lengthy history of this matter and the extremely serious allegations persuade me to the view that the circumstances in this case are “exceptional” and that the rules of evidence should apply.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 March 2013

Associate: 

Date:  1 March 2013