DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SVOBODA

[2012] FamCA 998

FAMILY COURT OF AUSTRALIA

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES & SVOBODA [2012] FamCA 998

FAMILY LAW – CHILD ABDUCTION – application of the rules of evidence under Family Law (Child Abduction Convention) Regulations

Family Law Act 1975 (Cth) ss 69ZM; 69ZT; 69ZV; 100B; 111B
Evidence Act 1995 (Cth) ss 4; 8; 55; 59; 60; 61; 62; 63; 66A; 136
Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regulation 29

RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012)
LK v Director-General, Department of Community Services [2009] HCA 9 (11 March 2009)
R v Hannes (2000) 158 FLR 359

APPLICANT: Director-General, Department of Family and Community Services

RESPONDENT: Ms Svoboda

FILE NUMBER: SYC 3731 of 2012

DATE DELIVERED: 26 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hartstein

SOLICITOR FOR THE APPLICANT: Department of Family and Community Services

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

Rulings

1. The objection to paragraph 53 of the respondent’s affidavit sworn 31 July 2012 is overruled.

2. The objection to paragraph 71 of the respondent’s affidavit sworn 31 July 2012 is overruled but the use to be made of that evidence is that it is only to be evidence of something the mother was told.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Department of Family and Community Services & Svoboda 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 SYDNEY

FILE NUMBER: SYC 3731 of 2012

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

MS SVOBODA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These are proceedings brought by the Central Authority under the Family Law (Child Abduction Convention) Regulations1986 (Cth) (“the Regulations”) for the return of two young children to the Czech Republic. The respondent mother claims the children were never habitually resident in the Czech Republic.

2. Any document tendered by the Central Authority in these proceedings is admissible as evidence of the facts stated in the document and any affidavit of a witness, who resides outside Australia, filed by the Central Authority is admissible even if that witness does not attend the proceedings for cross examination.[1] The mother is precluded from raising any objections to the admissibility of the material presented by the Central Authority. On the other hand, the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) apply to any affidavit filed or any document tendered in these proceedings by the respondent mother, subject to any statutory exceptions in other Acts or Regulations.[2]

   [1] Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 29.

   [2] Evidence Act1995 (Cth) s 4; s 8.

3. The respondent mother relies upon extensive material in sworn affidavits, including annexed documents. In Exhibit 3, the Central Authority objects to the admissibility of substantial parts of the evidence the respondent mother seeks to adduce. A number of the Central Authority’s objections to individual parts of the respondent’s evidence claim that those parts are not admissible because they are hearsay, pursuant to s 59 of the Evidence Act.

4. The plurality of the High Court in RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012) (“RCB”), made the following comments at [25] about the application of the rules of evidence in proceedings under the Regulations:

   25. As to the admissibility of such evidence, s 69ZT of the Family Law Act disapplies provisions of the Evidence Act 1995 (Cth) ("the Evidence Act") dealing, inter alia, with hearsay evidence[40]. The Court has a discretion to apply such provisions[41]. Even if the Evidence Act does apply, that Act provides for exceptions to the rule against hearsay. Evidence of a child's previous representation may be admissible under one of the general exceptions covering first-hand hearsay[42]. In the case of a child lacking capacity, such evidence may be admissible as a contemporaneous representation of the child's feelings[43].

   [40] Family Law Act, s 69ZT(1)(c).
   [41] Family Law Act, s 69ZT(3).
   [42] Evidence Act, Pt 3.2, Div 2.
   [43] Evidence Act, s 66A.

5. The first sentence of paragraph 25 appears to be an obiter statement by the High Court and both counsel for the applicant and the counsel for the respondent have indicated that they do not wish to rely upon that statement. I am unable to accept that s 69ZT Family Law Act1975 (Cth) (“FLA”) would normally, or in this case, disenable the rules of evidence in proceedings under the Regulations for the following reasons.

6. Section 69ZT FLA is a section disenabling certain rules of evidence including the hearsay rule as that rule would ordinarily apply to “child-related proceedings”.[3] Proceedings to which Division 12A of Part VII of the FLA apply are “child-related proceedings”.[4] Division 12A applies to proceedings that are wholly under Part VII of the FLA.[5] Section 69ZT FLA may also apply to any part of proceedings that are under Part VII or may apply to other proceedings under the FLA if parties consent.[6]

   [3] The opening words of Family Law Act1975 (Cth) s 69ZT(1).

   [4] Family Law Act1975 (Cth) s 69ZM(4).

   [5] Family Law Act1975 (Cth) s 69ZM(1).

   [6] Family Law Act 1975 (Cth) ss 69ZM(2)-(3).

7. The applicant has not given consent that would enable s 69ZT FLA to apply to this case[7] and has, in fact, by way of exhibit 3, raised objections based on the rules of evidence, particular the hearsay rule. 

   [7] Family Law Act1975 (Cth) s 69ZM(5) provides that the consent must be free from coercion and must be given in a form prescribed by the applicable Rules of Court.

8. At [3] of RCB, the plurality state:

   3. Australia has enacted laws to enable it to give effect to its obligations under the Convention. They are to be found primarily in s 111B of the Family Law Act 1975 (Cth) ("the Family Law Act") and in the Family Law (Child Abduction Convention) Regulations ("the Regulations")…

9. It seems clear that proceedings under the Regulations are not “child related proceedings”. That is, these proceedings are proceedings under s 111B FLA and the Family Law (Child Abduction) Regulations 1986 (Cth) and they are not proceedings under Part VII FLA. Accordingly, s 69ZT FLA does not disapply the provisions of the Evidence Act in this case and insofar as I am asked to make rulings on evidence based on the hearsay rule, I find that that rule does apply to these proceedings, as do all the provisions of the Evidence Act.[8]

   [8] Subject to the operation of any other Act or Regulation; Evidence Act 1995 (Cth) s 8.

10. As the High Court goes on to point out in RCB,[9] there are relevant exceptions to the rule against hearsay. In the context of many of the hearsay objections taken in this case, the provisions of s 66A of the Evidence Act are applicable.

    [9] [2012] HCA 47 (7 November 2012) [25].

11. As I have mentioned, the respondent seeks that the Department’s application be dismissed on the basis that the children were not habitually resident in the Czech Republic prior to returning to Australia. In determining habitual residence, the respondent’s intentions from time to time are facts in issue.[10]

    [10] See LK v Director-General Department of Community Services [2009] HCA 9 (11 March 2009) [23].

12. If statements are made by the mother about her intentions which are essentially self-serving, then they may not pass the test of relevance contained in s 55 of the Evidence Act. This is because, as a matter of logic, such statements may not rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue.[11] If the mother’s statements are not self-serving, then evidence about the mother’s intentions is relevant to the assessment of the probability of the existence of a fact in issue in these proceedings. 

    [11] See Studdert J (with whom Spigelman CJ and Dowd J agreed) in R v Hannes (2000) 158 FLR 359 [471]–[474].

13. Section 66A of the Evidence Act is an exception to the hearsay rule that applies to contemporaneous statements about, inter alia, a person’s intention and is in the following terms:

    The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person’s health, feelings, sensations, intention, knowledge or state of mind.  [emphasis added]

14. So in relation to a number of the objections, if the statement is not objectionable because it is self serving, the question to ask is whether a hearsay statement made by the respondent is a contemporaneous representation about her intention. If it is, the hearsay rule does not apply.

15. The applicant has taken a significant number of objections to parts of affidavits filed by the mother that are of the same nature. I will select examples of evidence to which the applicant objected and my specific rulings can apply more generally to other like objections.

16. The application objects to part of paragraph 53 of the mother’s affidavit sworn 31 July 2012. The evidence that the mother has given (with the objection in bold) is as follows:

    53.  Both children were enrolled in daycare at [an ELC] on the Gold Coast during 2011 and when we left I had a conversation with the director about our being away for a few months and wanting spots for the children on our return. The director told me they would make space available for the children.

17. Appropriately no objection was taken to the evidence based on its form. The objection was rather on the basis that that evidence was not admissible because of the hearsay rule. I find the hearsay rule does not apply to the statement made by the mother to the director because the statement is a contemporaneous representation about the mother’s intention at the time the statement was made. Similarly, the statement made by the director to the mother is “first hand” hearsay[12] and a contemporaneous representation of the director’s intention. I overrule the objection.

    [12] Evidence Act 1995 (Cth) s 66A is confined to “first hand hearsay” – see Evidence Act 1995 (Cth) s 62.

18. The applicant objects to the first sentence of paragraph 71 of the mother’s affidavit sworn 31 July 2012. It is in the following terms:

    71.  The two mothers I spoke to told me that I should not go to the police as they would always take the man’s side.

19. The objection is that this statement offends the hearsay rule. I find that it does not. The statement made by the two mothers is not adduced by the mother to prove that the police of the Czech Republic always take the man’s side but rather that the mother was given that information by two mothers. I overrule the objection, but pursuant to s 136 of the Evidence Act I limit the use to be made of that evidence to that purpose and no other.

Statements made by the children

1. A number of the applicant’s objections, based upon the hearsay rule, relate to evidence given by the mother about statements made by the children. The children in this case are 4 and nearly 3 years of age.

2. There is the general provision in child-related proceedings contained in s 69ZV FLA that disenables the hearsay rule in relation to statements made by children but allows the court to give such weight, if any, as it thinks fit to such evidence.[13] This provision, however, does not apply to proceedings under the Regulations for the same reasons s 69ZT FLA does not apply to these proceedings.[14]

   [13] Family Law Act 1975 (Cth) s 69ZV(3).

   [14] I note in passing that s 69ZV is substantially a re-enactment of s 100A before it was repealed by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The repealed section was also confined to proceedings under Family Law Act 1975 (Cth) Part VII.

3. This is not a case, as RCB was, where the Regulations require the court to consider an objection by a child which shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes and the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.[15] In such a case, statements by a child are admissible[16] as first hand hearsay under Part 3.2, Division 2 of the Evidence Act, and in particular, either under s 63 or s 66A of the Evidence Act.

   [15] Family Law Act 1975 (Cth) s 111B(1B); Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(3)(c).

   [16] As the High Court points out in RCB at [25].

4. Section 63 of the Evidence Act applies when the person who made the previous representation is not available to give evidence. A person is not available if it would be unlawful for the person to give evidence about a fact.[17] Section 100B FLA prevents the evidence of children being filed or heard without leave of the court. It also prevents children being in the court. Given s 100B FLA, in almost all circumstances, the child will be taken to be a person who is not available to give evidence about a fact.

   [17] Evidence Act1995 (Cth) Dictionary; pt 2 cl 4(1)(d).

5. The provisions of s 63 of the Evidence Act do not apply in this case to prove the existence of a fact asserted by the children because the children in this case would not be competent to give evidence about that fact.[18]

   [18] Evidence Act 1995 (Cth) s 61(1).

6. This still does not stop statements made by children being admitted:

   25.1.for non hearsay purposes (for example to put in context the effect a statement made by a child has had on a parent).[19] However if the statement is admitted for a non hearsay purpose I shall limit the use to be made of that statement.[20]

   25.2.as a contemporaneous representation about the child’s health, feelings, sensations, intention, knowledge or state of mind.[21]

   [19] Evidence Act 1995 (Cth) s 59.

   [20] Evidence Act 1995 (Cth) ss 60, 136.

   [21] Evidence Act 1995 (Cth) s 66A.

7. It may in the future be a matter for further legislative consideration, in the context of proceedings under the Regulations, that have as their purpose a consideration of the speedy return of a child to its home country, and where usually they are heard as summarily as possible, as to whether the provisions of s 69ZT and s 69ZV FLA might be extended to proceedings under the Regulations.

8. Given those rulings on those particular objections and my observations about the objections to the evidence about the children’s statements, I will now proceed to deal with the balance of the objections. Counsel should assume that I will make similar rulings to like objections. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 26 November 2012.

Associate: 

Date:  26.11.2012