DUFFY & GOMES
[2015] FCCA 1121
•16 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DUFFY & GOMES | [2015] FCCA 1121 |
| Catchwords: FAMILY LAW – Parenting – adjournment of hearing to enable subpoena to be issued – fundamental importance of evidence not obtained to the proper determination of the proceedings and the children’s best interests – failure by the Independent Children’s Lawyer to issue clearly necessary subpoena – evidential issues arising from the failure to issue subpoena and obtain available evidence – role of the Independent Children’s Lawyer – duties of the Independent Children’s Lawyer when both parties self-represented – child’s right to a voice in the proceedings – child’s right to participation – failure of the Independent Lawyer to meet with two teenage children after the release of two family reports – Impact upon the Court’s resources of adjournment – impact upon and disadvantage to parties and children of adjournment when a decade of litigation has preceded. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZT, 69ZV, 69ZW |
| Browne & Dunn (1893) 6 R 67 (HL) Other Articles Cited: Independent Children’s Lawyers Study: Final report, 2nd edition, June 2014 Rae Kaspiew, Rachel Carson, Sharnee Moore, John De Maio, Julie Deblaquiere and Briony Horsfall |
| Applicant: | MS DUFFY |
| Respondent: | MR GOMES |
| File Number: | AYC 463 of 2007 |
| Judgment of: | Judge Harman |
| Hearing date: | 16 March 2015 |
| Date of Last Submission: | 16 March 2015 |
| Delivered at: | Albury |
| Delivered on: | 16 March 2015 |
REPRESENTATION
The Applicant appeared in person
The Respondent appeared in person
| Counsel for the Independent Children’s Lawyer : | Mr Blackman |
| Solicitors for the Independent Children’s Lawyer : | Loretta Terrill Family Lawyer |
ORDERS
This matter is to be adjourned on a part heard basis and listed for further hearing on 20 & 21 May 2015 at 10:00am.
The Independent Children’s Lawyer shall forthwith:
(a)Meet with the children whose interests are represented to engage in such discussions with them as may seem necessary and appropriate, but particularly having regard to events and incidents which are suggested to have occurred since they were met in 2014 and canvass such contents of the two Family Report which have been produced since that time as may seem appropriate to assist the Independent Children’s Lawyer in formulating a position, taking into account the children’s right to participate and views expressed by them and in the discretion of the Independent Children’s Lawyer.
(b)Cause the issue of all necessary subpoena for production of documents to obtain records that would be relevant to the issues in these proceedings, including but not limited to:
(i)The Department of Human Services, Victoria;
(ii)New South Wales Police;
(iii)Victoria Police;
(iv)(omitted) College, (omitted) College Campus (seeking records from the school wellbeing officer and any school counsellor or chaplain);
(v)The mother’s psychologist, Mr G;
(vi)Records of the father’s attendance upon his psychologist “Mr N” through (omitted) Health; and
(vii)Such other subpoena as may appear useful, necessary or desirable.
IT IS NOTED that publication of this judgment under the pseudonym Duffy & Gomes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT ALBURY |
AYC 463 of 2007
| MS DUFFY |
Applicant
And
| MR GOMES |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future parenting arrangements for two adolescent children X born (omitted) 2000; X will shortly turn 15 and Y born (omitted) 2001. Y has recently turned 13.
The parties to the proceedings are the children’s parents, Ms Duffy, who is the Applicant and the children’s mother and Mr Gomes, the children’s father and the Respondent.
History of proceedings
The proceedings have a lengthy and, from the perspective of the parents, these children and the Court, regrettable history before the Court.
The first proceedings between these parties were initiated in a State Magistrates Court at Wangaratta in mid-2007. That application was transferred to the Family Court of Australia. After a number of appearances the proceedings were transferred to the Federal Magistrates Court of Australia (as it then was), such Order for transfer having been made 6 December 2007. Since then, there has been relatively unceasing and unremitting litigation.
The proceedings which were then on foot had involved an Application Initiating Proceedings filed by Mr Gomes and a Response thereto filed by Ms Duffy. Those proceedings would appear to have been concluded by final Orders made by Federal Magistrate Henderson, as she then was, on 16 October 2008.
The Orders of 16 October 2008 provided that the parents were to have equal shared parental responsibility for the children, that they would live with their mother and spend time with their father each alternate weekend and for half of school holidays. Sadly, if not ironically, now some six years later the parties find themselves at the same point, at least from the father’s perspective, of seeking to obtain Orders in those very terms.
Not long after the first round of proceedings had been concluded by the above Orders the parties began to experience difficulties. Those difficulties are spoken to in the evidence filed by each of the parties in this round of proceedings.
On 30 January 2012 an Application in a Case was filed by Ms Duffy. The relief sought therein need not be addressed at this point. However, that Application in a Case then sparked further proceedings between the parties, which were concluded by further Orders made by consent on 30 November 2012. The effect of those Orders was to:
a)Discharge all prior Orders;
b)For the parents to have equal shared parental responsibility for both children;
c)For X to live in a week-about shared care arrangement; and,
d)For Y to live with her mother and spend time with her father each alternate weekend and half of all school holidays.
The present proceedings have their genesis on 8 July, 2013. On that date the father filed an Application for Contravention alleging non-compliance with the Orders on the part of Ms Duffy.
On the first return date of those proceedings certain Orders and directions were made. The proceedings were then adjourned.
During the adjourned period an Application in a Case was filed by Ms Duffy having been filed on 27 September 2013. An Application Initiating Proceedings has not been filed in these proceedings, although Orders have been made “deeming” the Application in a Case to be and to be treated and determined as an Application Initiating Proceedings. Similarly, the Response to Application in a Case has, by procedural or interlocutory Order, been determined to be treated as a Response thereto. The matter now thus proceeds on a final basis.
At all times during these proceedings each of the parties has been self-represented.
The interests of the two children are independently represented.
The matter comes before the Court today for final hearing. That hearing occurs following the completion of two Family Reports in the matter, one dated 10 March 2014 and one 21 July 2014. The second Family Report was commissioned as some days after the completion of the first report, it was suggested that events of great significance occurred, (to which events I will return shortly), and which events give rise not only to the present dispute between these parties but the need for adjournment of the proceedings.
As a consequence of the issues that were raised by the parties in these proceedings and following upon the filing of the Application in a Case by Ms Duffy, (which Application in a Case was accompanied by an Affidavit and Notice of Risk), an Order for the appointment of an Independent Children’s Lawyer was made on 30 August 2013. The Independent Children’s Lawyer has been involved in these proceedings since that time.
The Court is advised that shortly after the Order for appointment that the children met with the Independent Children’s Lawyer. The children have only met with the Independent Children’s Lawyer on that one occasion early in the litigation.
The matter has proceeded today by way of defended hearing. The matter has reached the point where, shortly after 4pm, cross-examination of the Applicant mother by the Independent Children’s Lawyer had “concluded”. I have used quotation marks for that descriptor, as clearly cross-examination by the Independent Children’s Lawyer will reopen with the resumption of the hearing, or at least such right shall be reserved.
The proceedings have reached a point wherein, following the mother’s cross-examination by the Independent Children’s Lawyer, it is clear that there are a significant number of evidential issues which cannot be properly addressed in these proceedings without adjournment and substantial work being undertaken to collect and gather evidence, at least if the proceedings are to be determined, as they must be, by reference to the child’s best interests as paramount. I will turn to that shortly.
Adjournment would appear inevitable. Adjournment of the hearing is not resisted but nor is it consented to by the parties themselves, who both describe fairly and appropriately, that not only they but their children are weary of this litigation.
What is apparent from the material that has been considered to date is the statement by the Family Consultant at paragraph 24 of the second report, dated 21 July 2014, that:
Sadly, X and Y have suffered since they were young children from being caught in the mist of family violence, parental conflict and ongoing litigation. X and Y may be vulnerable children and being impacted by the parental dynamics and their exposure to conflicted emotional environment.
That is a theme of some real importance as regards the adjournment of proceedings.
These children have, since at least 2007 (and Mr Gomes opines since the parties’ effective separation in 2002, now some twelve years ago or the vast majority of these children’s lives), been exposed to such conflict, dispute and disadvantage.
The mother in the concluding portions of her cross-examination today had agreed with the proposition that the children had been caught in conflict since separation and has given at least one example of the direct and immediate impact upon these children.
These children are not doing as well at school as they might and, in accordance with the mother’s evidence in cross-examination, which I have no reason to doubt, their performance has deteriorated significantly whilst the present proceedings have been on foot, such that both children were achieving much better than they are presently and both are now at the low range of their class in performance. Educationally these children have suffered and that is leaving aside any impact upon these children emotionally or otherwise.
To that end, the mother during her cross-examination gives evidence that following certain events suggested to have occurred in 2014 and shortly after the release of the first Family Report, that the child X at least, if not both children, experienced significant emotional and physical symptomology, including nightmares, disturbed sleep and incontinence. They are matters which are yet to be tested by Mr Gomes and thus are not accepted as proven fact. I simply allude to the evidence given by the mother as to the impact upon these children of events between these parents.
Evidential issues
It has become apparent, during the cross examination of the mother today, (which cross-examination with some interruptions whilst the Court has attended to other business, has consumed the majority of the day), that no subpoena have been issued at all in these proceedings. That is, since this fresh raft of litigation was commenced in mid-2013, some 21 months ago.
That failure to issue subpoena to obtain evidence that is clearly available and highly relevant to the proceedings is problematic on a number of levels, not the least of which is that the existence of such material is clearly identified in the evidence which is before the Court, comprising two Family Reports and the evidence of the parties. With such conflict in the evidence of the parties the independent and corroborative evidence that is clearly available would fundamentally assist in addressing contested issues.
I do not propose to canvas the myriad of issues between these parties at great length, as the matter is part-heard. I would not wish either of the parties, and particularly not Mr Gomes, who has not yet had the opportunity to cross-examine Ms Duffy or conduct his own case as the Respondent, to form the view that any concluded finding of fact has been made beyond that limited and uncontested facts identified above being the impact upon these children of conflict and exposure thereto.
The mother’s case suggests that the children have been exposed to significant behaviours by their father, including a particular event suggested to have occurred in March to mid-2014, wherein it is suggested that the children and each of them were present during a significant assault alleged to have been perpetrated by the father upon his partner or then partner.
The mother’s Notice of Risk speaks voluminously to that allegation, where she asserts that on 27 April 2014, “They witnessed their father assault his partner and they had to intervene. There was police attendance”.
The mother suggests that since that time the children have expressed significant reluctance to engage with their father on any level. Indeed, following the making of that allegation, a further Application in a Case was filed by the mother and Orders were made which provided for further reduction of the time that was then being spent by the children with their father, such that they have spent time with their father, in essence, one day each fortnight and for the day only.
The mother’s material, the father’s material and the Family Consultant’s reports clearly identify as available relevant material which includes but is not necessarily limited to material from:
a)Victorian Police;
b)New South Wales Police;
c)The Department of Human Services, Victoria;
d)The school attended by the children and comprising records from a School Wellbeing Officer as well as a School Counsellor or Chaplain;
e)A private psychologist consulted by the mother;
f)The children’s GP;
g)The father’s psychologist. The father has led evidence that he has attended upon a private psychologist and has received substantial assistance from that psychologist in addressing a number of behaviours which are suggested to be the basis of concerns held by the mother. Those records would also have some great relevance.
There may well be other records. However, the existence and apparent relevance of the above documents is clearly identified in the filed and commissioned evidence and prior to the mother’s cross-examination.
In evidence, as an annexure to the mother’s material, are two letters produced under the hand of an Officer from the Department of Human Services. They are somewhat unusual in their terms and, for a Judge such as myself, coming from the New South Wales jurisdiction, perhaps unheard of. The New South Wales Department of Family and Community Services, due to their workload and other constraints, including perfectly plausible issues of privacy and confidentiality, do not provide such correspondence. Two letters are dated 26 March 2014 and 12 May 2014 respectively. Each is addressed to “Family Law Court” although no such body exists.
The documents, addressed as they are, are clearly prepared in knowledge of, if not contemplation of, litigation and would not appear to be business records and there may be some question as to their admissibility on the basis of due process (see section 135 and section 136 of the Evidence Act 1995) as their contents cannot be tested. However, they are admitted subject to weight as neither the father or the Independent Children’s Lawyer has objected.
What is noteworthy about the first of the letters is that the Department indicates that, following certain calls they had received and certain information provided to them, that the Department had, on 21 March 2014, determined that time between the children and their father, “should be suspended until interviews of the children and parents could occur”.
One infers that the Departmental Officer simply intended to suggest that they advised the mother that she should not comply with the Order.
It is then suggested, in each of the letters, that Departmental Officers were satisfied that child protection concerns were substantiated on the basis of allegations of emotional and physical harm to the children, although each letter makes clear that no further intervention was intended by the Department.
That is not a criticism of the Department. Clearly, the Department were aware or made aware of the existence of these proceedings and Orders made by this Court. In accordance with protocols between State Welfare Agencies and the Court it was determined that the matter could and should be addressed through this Court rather than through further proceedings being commenced by the Department. The Department clearly gave the mother certain advice and the mother, after receiving that advice, made application to this Court.
The correspondence suggests certain opinions have been formed by Departmental Officers and communicated to the parties or at least the mother. This includes opinions as to the substantiation of allegations that had been raised, although the information relied upon in forming such opinions and the source of that information is not clear.
What is not clear and apparent from the documents, particularly the earlier document, 26 March 2014, is the nature of the concerns raised with the Department.
The mother, when cross-examined regarding that correspondence, was unable to recall the basis of the complaints to the Department at that time or who had made them, although she indicated that complaints or mandatory notifications had been made by persons other than her. It may also be suggestive of the degree of involvement of the Department that it is difficult for the mother to remember the specific details of that particular intervention.
Some real assistance would be given to this Court by having before it the evidence or records or information that had been available to Departmental Officers when there are opinions that are suggested by that correspondence. All of that material is particularly significant in light of:
a)The operation of Division 12A and the non-application of certain portions of the Evidence Act 1995 that might more readily admit portions of that material; and
b)The importance of admissible evidence being before the Court with respect to allegations of significance with respect to the welfare of these children.
I make clear that it is not that the Department has been unco-operative or unhelpful. Far from it. The Department has never been asked to produce material through either subpoena or application to the Court for an Order pursuant to section 69ZW of the Family Law Act 1975 (Cth).
Significant reliance is placed in the mother’s case upon material made known to the Department of Human Services and that material is not here. The mother is and has, at all times, been self-represented. I accept that the mother, self-represented as she is, would not likely be aware of section 69ZV of the Act and the admission of representations made by children as an exception to the hearsay rule or the operation of the rule in Browne & Dunn (1893) 6 R 67 (HL), the operation of the rule in Jones & Dunkel (1959) 101 CLR 298 and importantly the impact of authorities such Makita & Sprowles (2001) 52 NSWLR 705, Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 etcetera, and thus the importance that Departmental records might have upon findings of fact in relation to certain events.
The Independent Children’s Lawyer is aware of all of those matters and the impact that those matters would have upon findings going to the welfare of the very children whose interests the Independent Children’s Lawyer represents.
It is important to note that the father denies that these children were exposed to any physical assault by him upon his partner or any other person. The father conceded that the children were present during a verbal argument between him and his partner. But that is a very different category of complaint to the mother’s suggestion that the children were exposed to the father’s assault upon another adult and the further allegation that the children intervened in said assault, with the potential for physical or emotional injury to them.
There are further complaints raised in the proceedings to which documents clearly identified as existing would speak, whether to support allegations or to end a line of inquiry, as it were.
There are issues raised in the evidence as to complaints previously made by the child X in relation to the mother’s, until recently, partner. It is suggested that those complaints are of a sexual nature. Reports were made, indeed a statement given by that child to the Police, wherein it is suggested that she made clear disclosures.
Within a week or so the child retracted those allegations and provided a further statement after the child had passed into the mother’s care and had attended the Police with her. That is not to suggest any causal connection between the two, simply the chronological connection. The father, however, invites the Court to draw such a connection, asserting that the mother has, in relation to that allegation and the allegations which are made with respect to him, either manufactured or exaggerated statements made by the children, coached them or in some way brought pressure to bear upon them or made some suggestion to them directly or indirectly which has caused them to make statements which are not entirely correct or possibly completely false including statements to the Police and/or Officers of the Department of Human Services.
Those issues, of course, are not significantly canvassed in the Family Reports. It must be noted that this is no criticism of the report writer. The Family Report writer has done the best that she can with the evidence that is available, which comprises the affidavits of the parties essentially and correspondence from the Department of Human Services referred to above. Even if further material were available it is not the role of the report writer to make findings of fact.
Not a single document has been subpoenaed that would speak to the issues in dispute. Those documents are clearly available. They have been clearly available since either the appointment of the Independent Children’s Lawyer (as regards the more historical allegations) or since April 2014 in relation to the more significant allegations referred to above.
Ongoing issues and allegations have arisen and no subpoena has been issued nor application made to the Court for issue of an Order pursuant to section 69ZW of the Act that would bring material before the Court.
As regards the evidential problems that are created thereby, I incorporate, for the purpose of consistency between Judgments, paragraphs 177 to 210 of my decision in Gabel & Meltzer [2014] FCCA 604, dealing with the operation of the rules in Browne & Dunn (1893) 6 R 67 (HL), Jones & Dunkel (1959) 101 CLR 298 and Makita & Sprowles (2001) 52 NSWLR 705 and like considerations as well as paragraphs 63 to 78 of my earlier decision in Deacon & Castle [2013] FCCA 691 regarding the impact and effect of both Division 12A upon the operation of parenting proceedings and the importance of section 140 of the Evidence Act 1995 as regards these issues.
Admission of business records and reliance thereupon
177. Mr Gabel’s evidence regarding the time that he has spent with the children at either the Contact Centre or under the supervision of [P] is, at its best, brief. Mr Gabel describes (paragraph 83) “that visits have been going well [the visits at that time occurring through the [R] Children's Contact Service].” That is the extent of Mr Gabel’s evidence.
178. The Contact Centre notes, I accept, are an accurate reflection of that which has occurred.
179. Similarly the evidence introduced through Exhibits M1, M2, M3 and ICL2 are business records and admitted as such.
180. The admission of the record is not, by and of itself, proof of the contents of the record.
181. Section 69 of the Evidence Act permits, as an exception to the hearsay rule, the admission of business records. This is, in accordance with subsection 2 on the following basis:
(2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
182. Whilst the contents of the document is not proved by the record having been made the comments of the New South Wales Law Reform Commission in its Report, Evidence (Business Records) makes clear that “… the fact that the statements were to be used by the business provided a strong incentive for accuracy”.[1]
[1] Evidence (Business Records), NSWLRC 17, July 1973.
183. I accept that each of the authors of the records which have been admitted as business records (without objection), is independent of the parties, objective and has accurately recorded that which has come to their knowledge whether through direct observation or through perception.
184. To the extent that opinions are offered within any of the documents admitted pursuant to section 69 of the Evidence Act (particularly as regards Police records and those of supervisors of time between
Mr Gabel and the children) I am satisfied that I should be guided by the comments of French CJ, Heydon and Bell JJ in their joint judgment in Lithgow City Council v Jackson [2011] HCA 36 and such that the words “saw heard or otherwise perceived” should include “to observe by one of the five senses of sight, hearing, smell, taste or touch” (as discussed in Stephen Odgers “Uniform Evidence Law 10th edition at page 307) and further that “the party adducing the evidence does not have to satisfy the Court that the person who made the representation had personal knowledge of the asserted fact. It will be enough that he or she “might reasonably be supposed” to have had such knowledge…”
185. In Rickard Constructions Pty Ltd v Rickard Hails Merreti Pty Ltd [2004] NSWSC 984 McDougal J stated at [19]:
in this context I think the words “or might reasonably be supposed to have had personal knowledge” indicate that the court is allowed to draw inferences not just from the form of the document but from the nature of the information contained in it…there is no need to identify the person who made the representation in the busies record the person with the pre-requisite knowledge [Lee v Minister for Immigration and Multicultural Affairs] 2002 [FCA 303 per Hely J at 22]; Australian Securities Investment Commission v Ridge [2005] 216 ALR 320 per Austin J at 197; Guest v Federal Commissioner of Taxation [207] FCA 193 per Heerey J at 25-31; Forbes Engineering (Asia) Pty Ltd v Forbes (no 4) [2009] FCA675 Collier J at 104.
186. I am satisfied that I can, should and will accept as accurate the contents of each of the documents that have been tendered as exhibits and admitted as business records pursuant to section 69 of the Evidence Act.
187. Particularly as regards the Police records there is no significant challenge by Mr Gabel (or any challenge which I consider credible) to the accuracy of their contents and thus I accept the accuracy of those records both as to the observations made and as recorded and as corroborative of Ms Meltzer’s evidence.
Browne & Dunn
188. Mr Gabel’s case is very much typified by the absence of information. It is also plagued by the absence of information that would be relevant (which will be dealt with separately by reference to Jones & Dunkel (1959) 101 CLR 298 issues).
189. Mr Gabel’s evidence is largely absence comment upon or response by him to the evidence of Ms Meltzer or the evidence of
Ms Meltzer’s mother (who was not cross examined at all).
190. Mr Gabel did not instruct his Counsel to engage in cross examination of Ms Meltzer regarding the majority of her evidence and especially serious allegations or issues of significance.
191. I accept that the absence of cross-examination and such matters has occurred upon instructions. I do not intend to suggest or imply any degree of negligence (to the extent that that is a relevant concept) by Counsel for Mr Gabel. Mr Gabel’s case has been prepared and conducted in accordance with his instructions and to the extent that he has allowed and permitted it to be so.
192. Mr Gabel does not substantially refer to, comment upon or present any evidence regarding events demonstrative of family violence as led in Ms Meltzer’s case. This is significantly addressed above in canvassing of the evidence.
193. In light of the above one is reminded of the comments of Lord Herschell in Browne & Dunn (1893) 6 R 67 (HL):
“… I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit… I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
194. The allegations of violence and the specific particulars of each allegation as raised in Ms Meltzer’s evidence were not canvassed with her at all in either Mr Gabel’s affidavit evidence or cross-examination.
195. To the above end I am particularly appreciative of the comments of Wells J in Reid v Kerr (1974) 9 SASR 367 at 373-4 which I consider the most apt and appropriate description of the difficulty that arises in this case and the interpretation and application of the rule in Browne & Dunn as follows:
…a judge… is entitled to have presented to him... issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne & Dunn has not been observed, have not been brought into direct opposition, and serenely past one another like two trains in the night.
196. In reliance upon the above passages I am satisfied that wherever there is conflict between the evidence of Ms Meltzer and Mr Gabel, particularly but not solely confined to issues of family violence and the particulars thereof, that the evidence of Ms Meltzer should be accepted.
Jones & Dunkel
197. Significant Jones & Dunkel issues arise in this case.
198. As is clear from the above Mr Gabel has presented minimal evidence in his case and particularly so as regards the central if not pivotal issues, the fulcrum upon which the case substantially balances, his present mental health, symptomology, treatment, diagnosis and the impact of these factors (individually and cumulatively, and at least historically by reference also to issues of drug and alcohol abuse) upon his capacity to act as an appropriate member of civil society, conduct himself in an appropriate fashion as regards Ms Meltzer and the children (and others) and provide these children with an opportunity to experience a relationship with him in a safe and appropriate environment.
199. The failure by Mr Gabel to call any evidence with respect to his present mental health, his past, present or future treatment or to corroborate that asserted by him (albeit minimal in nature) is somewhat fatal to his cause.
200. Mr Gabel did not provide any explanation as to why this evidence had not been called other than to indicate, with respect to his general practitioner, that he did not consider it “relevant”. I do not accept that Mr Gabel would not have been disabused of that notion, had he raised it with his attorneys. Indeed, he should have been disabused of that notion by each of the two reports commissioned in the proceedings.
201. I note and receive considerable assistance from the joint judgment of Gibbs ACJ, Stephen, Mason and Aitken J in the High Court’s decision of Brandi v Mingot (1976) 12 ALR 551 (at pages 559-560) and as quoted with approval by Campbell J in Manly Council v Burn and another (2004) NSWCA123 at 51 follows:
.. if a witness is not called to different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
202. I am satisfied these principles should apply to Mr Gabel’s case.
203. To the extent that there is an absence of evidence regarding
Mr Gabel’s mental health, treatment therefore, diagnosis, compliance and the like I am satisfied that an adverse inference should be drawn as to Mr Gabel’s present mental health, engagement with treatment and overall “wellness”. This is particularly so as the only reference I have to any opinion by a treating practitioner (or relatively recent treating practitioner) is the reference by Dr R to his discussions with Mr Gabel’s last treating psychiatrist which was suggested by Dr R to confirm his concerns that in addition to personality issues that Mr Gabel also experienced and suffered from a recurring psychotic illness and which was further exacerbated through poor insight and poor compliance. Dr R indicated that Mr Gabel’s past psychiatrist had, for 12 months been unable to obtain any appointment with Mr Gabel or regular compliance with medication and that:
a) He had presented with persecutory delusions (Mr Gabel’s evidence was, indeed, typified by his being able to “point the finger of blame” at various persons (particularly Ms Meltzer and Ms A) for the difficulties that had befallen him as a consequence of his actions towards them rather than, in self-reflective fashion, stepping back from those behaviours and accepting his own responsibility and culpability let alone the impact of those behaviours upon those persons).
b) Having been diagnosed with a personality disorder with cluster B traits relating to anti-social behaviour.
c) Gaps in treatment.
d) Periods of homelessness
e) Periods of erratic or non-compliant behaviour.
204. Thus I am satisfied that evidence has not been called by Mr Gabel from treating psychiatrists or other practitioners as that evidence would, in all probability, provide little or no support (if not direct contradiction) to the optimistic prognosis and presentation suggested by Mr Gabel.
205. As regards the absence of other relevant witnesses, (such as for instance his parents who were for a significant period the supervisors of his time with the children) I am satisfied that this would not only give rise to a negative inference as to the support to be provided by their evidence to Mr Gabel’s cause but also the fact that their evidence would cause harm to Mr Gabel’s case.
206. It is to be remembered that Mr Gabel’s parents had been implicated in a number of regrettable and negative events relating to the children including:
a) The failure to return the children (on Mr Gabel’s evidence on his instruction) to Ms Meltzer’s father (the Bunnings incident).
b) The involvement of Mr Gabel’s mother in the removal of [X] from school and [Y] from pre-school and presentation thereafter at the hospital.
c) The introduction of the children to Mr Gabel’s brother who is restrained from coming into contact with the children pursuant to Orders made by consent between the parties and as to which Mr Gabel indicated that he had made his parents fully aware (indeed his evidence suggested that they were at Court in his place when that Order was made).
207. At no point in his evidence did Mr Gabel give any cogent or tangible reason why any of the relevant witnesses who might have been called in his case were not so called.
208. The Jones & Dunkel inferences that arise would be sufficient and I am satisfied should be sufficient to cause me to reject Mr Gabel’s evidence whenever it is in conflict with that of Ms Meltzer or the other available objective evidence introduced through business records.
Makita & Sprowles
209. Heydon JA’s judgment in Makita (Australia) Pty ltd v Sprowles (2001) 52 NSWLR 705 makes clear, to paraphrase His Honour’s reasoning, that an expert is required to identify the factual matters relied upon by them in formulating and expressing their opinion (to be based on specialised knowledge) and for those matters to be proven as fact for the opinion to attract weight and or be relied upon.
210. Such reasoning has been reaffirmed by the High Court in Dasreef Pty Ltd v Howchar (2011) 277 ALR 611 and others.
Deacon & Castle
Rules of evidence generally
63. These proceedings, dealt with as they are pursuant to Part VII Division 12A of the Family Law Act 1975, are not the subject of strict application of certain portions of the Evidence Act.
64. Division 12A and, in particular, section 69ZT(1) provides:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
65. Section 69ZT(1) is subject always to sub-sections (2) and (3) which provide:
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
66. I have not taken the step of seeking to declare my satisfaction that the circumstances of the proceedings are “exceptional” such that the rules of evidence would apply strictly to the totality of the proceedings or any specific portion thereof.
67. I did, at the commencement of the trial, make clear to the parties that section 69ZT(2) would have significant impact on these proceedings (for reasons that I will explain in detail shortly) and as a consequence of its application that little, if any (emphasis added), weight would be attached to material which did not comply with the portions of the rules of evidence otherwise expressed not to apply as a consequence of section 69ZT.
68. Similar issues were apprehended as regards evidence relating to statements suggested to have been made by the children or either of them and admissible as a consequence of section 69ZV which provides:
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other Act or rule of law.
(5) In this section:
"child" means a person under 18.
"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
69. It is to be noted that section 69ZV includes a similar provision to section 69ZT(2) in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.
70. Germanely, it is important to note that Division 12A does not exclude Part 3.11 of the Evidence Act dealing with discretionary and mandatory exclusions.
71. Sections 135 and 136 of the Evidence Act provide:
135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
72. The general discretion to exclude or limit the use of evidence pursuant to sections 135 and 136 has some real application to these proceedings (and any proceedings subject to Division 12A) and, in particular, the weight attached to evidence which would not, but for the provisions of Division 12A, be admissible and the weight, if any, to attach to that evidence so admitted. That is particularly so as regards substantial portions of the material filed in Mr Castle’s case.
73. It is to be noted that until shortly prior to the hearing of the matter that Mr Castle was self represented (indeed when the matter was initially listed for hearing in February 2013 Mr Castle remained self represented). Thus, Mr Castle has prepared material on his own behalf and without the benefit, assistance and guidance of an attorney.
74. Notwithstanding the above, it is to be observed that due process must be afforded to both parties. It is not appropriate to nor will the Court allow favour to a party and differentially apply rules of evidence based upon whether a party is represented or not.
75. Whilst it is common for parties before this Court to be self represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.
76. One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the Court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice.
77. The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
78. The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the Court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.
The Court is invited by the mother to find that the father has physically assaulted his partner in the presence of the children such as to cause them significant emotional and psychological disturbance. In the absence of evidence, it would be difficult for that finding to be drawn. Similarly, the father invites the Court to find that the children have been actively coerced, pressured, influenced or in some way placed in the circumstance whereby any memory that they have of events is either manufactured or exaggerated to his disadvantage, and thus seeking to impute wrongdoing to the mother. In the absence of the identified material no accurate assessment or indeed any assessment beyond guesswork could be made.
It is entirely unacceptable that clearly identified material, material potentially crucial to the proper determination of the best interests of these children is not before the Court. Evidentially, I am satisfied that it would be unsafe for the Court to proceed without that material having been obtained.
I am further satisfied that the children’s best interests could not be treated as the paramount consideration unless there is integrity in the evidence available. To proceed without such readily available material would cause significant concern.
In dealing with this issue, I must also touch upon the preparation of this trial and the role of the Independent Children’s Lawyer . I take no joy in doing so. Before I turn to that, however, I must make clear the disadvantage that will now be occasioned to these parties, the Court and the taxpayer through the adjournment of the proceedings.
As the High Court has made clear in authorities such as Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services & ANU [2009] HCA 47, the Court has an obligation to ensure that its resources are well used so that the advantage of litigants at large can be met. That is largely to be achieved through the Court ensuring that, as far as possible, the Court has control over its own resources and processes and such that proceedings can be dealt with expeditiously, (such meaning as can be given to that term in the present resource drought), and effectively.
If the matter were adjourned to “the next available hearing date” that would see the matter placed into a call-over in July or August of this year to then be allocated hearing dates in the mid to latter part of 2016, such is the present delay in light of the Court’s workload and the dearth of resources available to the Court. The matter cannot wait that long.
These children are 15 and 13. A delay of up to 18 months would render the father’s application nugatory. The elder child, X, would be of such an age that the Court would be loath to make any Order in favour of either parent with respect to her welfare. Y would by that time, in all probability, be 15 years of age, and X 17.
The other difficulty arises in that one of the few relatively agreed facts in this case, and as highlighted by the above brief discussion of evidence, is that these children have been exposed now to at least eight if not twelve years of litigation and conflict between their parents. Both parents agree that this has had devastating impact upon them. Notwithstanding this agreed acknowledgement these parents individually and collectively have been powerless to desist in generating and perpetrating conflict. It must end.
I had commenced the call-over of this matter this morning by quoting the words of Quinn J of the Ontario Superior Court in Geremia v. Harb, 2008 19764 (ONSC), “these parties have treated the court as their own private banquet table and feasted upon it”. In light of what has unfolded in the hearing of the matter today that is, in the circumstances, potentially harsh. I accept that the criticism may well apply to past proceedings but not this adjournment. However, resources will be consumed. But if the best interests of these children require it then so be it.
This adjournment is brought about by a failure by the Independent Children’s Lawyer to marshal and harness evidence that was clearly and readily available and should have been obtained.
The adjournment will come at a cost. The dates to which I propose to adjourn the proceedings are already 600 per cent over-listed. There is the potential for some 18 days of business before the Court to thus be “not reached”. Further hearing dates will then need to be found for those matters if it comes to pass that they are, in fact, not reached. There will be a cascading, indeed exponential, impact upon the remainder of circuit lists for this year, and if those matters are adjourned not reached and thus gain priority over other matters, there is a real probability that the work of the Court on this circuit will be significantly and dramatically impacted.
That is regrettable. But I am satisfied that the interests of these children in the above context warrants, requires and deserves expeditious conclusion of the matter, particularly when the absence of necessary evidence is not the fault of the parties, self-represented as they are.
On one level, one could be critical of the parties for failing to issue the very subpoena to gather the documents to which I have referred. It is, after all, their litigation. It is neither the Court’s litigation nor the Independent Children’s Lawyer’s litigation. It is for these parties to conduct their litigation. It is on that basis that I have included the portions from my decision in Deacon & Castle to which I have referred.
I am conscious that the same rules of evidence and procedure apply to parties whether legally represented or self-represented. The Court cannot begin to differentiate between those who are competently represented and those who are not. It would be unjust and unfair to do so. However, authority recognises that there are, in some circumstances, different steps which must be taken to ensure active participation, indeed fairness, to self-represented parties.
In this case both the mother and the father are and have at all times since this litigation commenced, been self-represented. It is one of the very bases, one of the factors identified in Re K [1994] FLC 92-461, upon which the appointment of the Independent Children’s Lawyer occurred.
It is to be remembered that at the time of appointment, August 2013, the most serious allegations which have been the subject of cross examination today had not yet arisen. The allegations have come about during the course of the litigation and after the appointment of the Independent Children’s Lawyer.
The appointment of the Independent Children’s Lawyer, as the Order for appointment reveals, was significantly influenced by the self-representation of both parties. One of the bases of the appointment was to ensure, as much as I experience some difficulty in utilising the Legal Aid Commission’s resources for that purpose, that all relevant and necessary evidence was before the Court, and in circumstances where the parties, unsophisticated litigants as they might be described, were unlikely to be sufficiently aware of the steps that they must take to bring that material before the Court.
The cost to the Court of this adjournment will be significant. As indicated, it will wreak havoc in the conduct of the Court’s circuits for the remainder of the year. The cost to the parties is also significant. These parties are weary of their litigation, and one can well understand why when they have, with little respite, been litigating since 2007 and prior to that been in active dispute and in conflict with each other between 2002 and 2007. As Kirby J identified in AMS & AIF (1999) CLR 160 there is a cost to litigation, and it is not purely financial cost.
Thankfully for the Independent Children’s Lawyer, both parties are self-represented. Thus an issue of cost with respect to the adjournment does not and cannot arise (although one would hope that if either party was represented the subpoena might have been issued).
By adjourning the proceedings there will be cost to the children - the very children whose interests the Independent Children’s Lawyer represents. The children, whom, the parties agree, and Ms D, the report writer, has highlighted, are presently significantly disadvantaged by this conflict and the absence of its resolution. The children will now be further disadvantaged.
One cannot imagine something more at odds with the philosophy, role and appointment of an Independent Children’s Lawyer than for their action of inaction to cause or potentially cause further disadvantage to the children whose interests they represent.
The cost to the parties is that they will now need to endure a further adjournment of two months before their matter can come back before the Court and hopefully, at that time, conclude.
The role of the Independent Children’s Lawyer
Much recent research has been devoted to the role of the Independent Children’s Lawyer. I will touch upon some of that research briefly.
Nicola Ross has identified in her paper ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26(3) Australian Journal of Family Law 220-239 as follows:
Although ICLs are well placed to play a role in proceedings that goes beyond ensuring that there is an expert report about a child’s views before the court, research suggests that children often do not feel as though they have been heard, even when they have been seen by a family consultant or other expert, and are represented by an ICL. This reflects a central concern for family law: how to hear children’s voices, give their views appropriate weight in the decision-making process and ensure that children feel that they have actually been heard. Taking account of children’s perspectives can have beneficial effects on children’s mental health, coping capacity and development and can contribute to better, more realistic decisions being made.
That is spoken to further in Dr Ross’ research, wherein she refers particularly to the research of Kaspiew, Hay, Lang as well as research by Parkinson and Cashmore and by Chisholm, all highly regarded authors and/or jurists, regarding that very issue and including research surveying children and parents regarding their satisfaction with the discharge of the Independent Children’s Lawyer of their role.
The mother in her cross-examination has already given some clues towards the path that such dissatisfaction might be suggested to take. The mother had indicated in the latter portions of her cross‑examination that the children had been reluctant to attend the Family Report interviews, particularly the second Family Report interviews as, “they had done it all before and they do not see anything happening or changing”.
This delay certainly is not going to assist the children’s views in that regard.
Children have a right, as Article 12 of the International Convention on the Rights of the Child provides to participate and have their voice heard. Article 12 provides:
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative [emphasis added] or an appropriate body, in a manner consistent with the procedural rules of national law.
It is concerning, as regards participation of these children, 15 and 13 years of age, that they have met their representative once and nearly two years ago. Two Family Reports have been prepared and the children have not spoken with the representative of their interests after the release of those reports.
Since the children’s singular meeting with the Independent Children’s Lawyer there have been significant issues and allegations raised in these proceedings and which have been the subject of investigation by Police and the Department of Human Services and the subject of two Family Reports.
The children have not met with their representative since the latter part of 2013 notwithstanding all of those events. It is unacceptable in the extreme that it would be so.
Dr Ross’ paper also related the following:
A related concern involves procedural fairness and Australia’s obligations under Article 12 of the Convention on the Rights of the Child to ensure children have opportunities to express a view and have it taken into account.
It must be noted that at the time of Ms Ross’ article, stemming from the completion of her PhD research, Article 12 and the entirety of the International Convention, had not been incorporated into the Family Law Act. It has now been, and had been in June 2012 prior to the appointment of the Independent Children’s Lawyer.
Dr Ross had also observed as follows:
Canadian, US and Australian research all suggests that children’s lawyers are gatekeepers in relation to participation.
It continued:
Parkinson and Cashmore’s study suggested different reasons for listening to children; either because children had “something important to tell us that may change the decisions we make on their behalf” or because empowering them benefited them, in that it allowed them to be active agents and not merely passive spectators in the process of making decisions. These rationales appear to be more consistent with the aim of supporting children’s “voice” and right to be heard in proceedings.
It must be observed, as indeed, the ‘National Legal Aid Guidelines for Independent Children’s Lawyers’ make clear, that it is the call of the Independent Children’s Lawyer to determine when, how or if children are met and whether they are met repeatedly, for different events or for different purposes. I do not cavil with that.
Whilst these children have been interviewed on a number of occasions by Police and Departmental Officers as well as the Family Consultant, I am concerned to make clear that in this case I do not believe that the view could not be maintained that for the children to then meet the person independently representing their interests in these proceedings, could possibly be categorised as “systems abuse” or in any way inappropriate.
If there is “systems abuse” that arises from the children’s repeated presentation to those external agencies. The conduct of the litigation requires that the children have the opportunity, as Article 12 prescribes, to not only have their voice heard in the proceedings but to participate in the proceedings to the extent that is consistent with their best interests. How that can be achieved when they are sent to the backseat of the bus and cannot even see the driver is difficult to understand.
Surely the day has come when children of this age, 15 and 13, have a right to have various propositions raised with them commencing with the right to meet with the person representing their interests and to discuss the contents of the Family Report and the recommendations contained therein.
The most recent report recommends that the children spend time with their father in accordance with their views and as they wish. There is, on one level, the reality that such an Order may lead to them having no relationship whatsoever with their father, at least at this time. In those circumstances, the consequence of that recommendation is significant.
Importantly, these children at their ages, might be offered the opportunity to have further involvement in the proceedings such as they may desire. They cannot be expected to be aware of the means by which they can participate unless it explained to them by the person representing their interests. Whilst it is novel and whilst I do not seek to invite it, it may be that these children might wish to meet the Judge hearing their case.
As indicated, I do not invite that application and will deal with it if and when made. However, clearly the children would not have been made aware of that opportunity, or indeed, its possibility. That is not to address the merits of such an application if it were made.
These children have also experienced, on either the father’s or the mother’s case, significant traumas. The mother alleges the children have been exposed to significant violence. The father suggests the children having been enlisted in the proceedings as co-conspirators, as it were, with their mother to seek to interfere in his relationship with them.
Whether either allegation is ultimately borne out as correct does not change the reality that these children have, since the appointment of the person representing their interests, been involved in two full Family Report interviews. The reports and their recommendations should have been canvassed with these young people.
Dr Ross had also sought to develop a typology of lawyers representing children. With respect to the first of those typologies, the “responsible lawyer”, a participant was quoted as describing the following of the role of the Independent Children’s Lawyer:
…being quite similar to counsel assisting a coroner in a coronial inquiry in that in your role as children’s representative, you are trying to ensure that the court has evidence before it that neither of the parties may have brought forward.
These parties, self-represented as they are, and doing the best that they can in difficult circumstances, have not issued any subpoena. Their material does, however, identify clearly the sources from which material might be subpoenaed. Even falling within the typology of “relational lawyer” as identified by Ross, such subpoena should have been issued.
Similar comments have been made in relation to the role of the Independent Children’s Lawyer by research undertaken by Fernando and Bell, which I will not canvass in detail. Suffice to say, that research adds further support to the propositions referred to above.
The ‘National Legal Aid Guidelines for Independent Children’s Lawyers’, published 6 December 2007, raise a number of specific matters regarding the role of the Independent Children’s Lawyer, including, in part 4 thereof:
The ICL is to ensure that the views and attitudes brought to bear on the issues before the court are drawn from and supported by the admissible evidence and not from a personal view or opinion of the case.
Inferred thereby if not expressly included would be an obligation to ensure that relevant, identified evidence is available.
The children in this case are suggested by both parties and by the Family Report writer to be confident, forthright and strong-willed children. Indeed, if they had been interviewed following the events, between these parties to which I have referred, contested as they are, or following the release of the Family Reports, even further avenues of inquiry might have been identified. If nothing else, it would have strengthened the participation for these children.
In dealing with that issue, I note that the recent AIFS study had raised a number of issues regarding the role of the Independent Children’s Lawyer and, in particular, regarding the view of participation. The AIFS study in its executive summary concluded:
The ICLs role in facilitating a child’s participation is of less significance than the evidence-gathering and litigation management functions.
Two important matters arise therefrom. Firstly, that is the conclusion drawn from the survey of ICLs themselves, Judicial Officers, non-ICL lawyers, and non-legal professionals. It is not a statement of fact. Secondly, to the extent that this attitude is expressed, it is not held by me. 15 and 13 year old adolescents have a right to participation. It is enshrined in International law and incorporated into domestic law.
The right to participation is not a right that can be given life or meaning without active engagement with the child - meeting them, explaining their options to them and giving them the opportunity to participate how and should they wish.
It may be that these children do not wish to be more actively involved in these proceedings, expressing as they do to the Family Consultant, and consistent with the mother’s cross-examination, a weariness with their involvement in their parents’ disputes to date. That can be well understood. But it may be, as Parkinson and Cashmore have described, or indeed, as the AIFS report alludes to, that something of real value might be given to these children or to the decision-making process of the Court, if participation were viewed as a more important factor or, in this case, as a factor at all.
It is also indicated in the AIFS study:
It is clear that the role of the ICL is valued, particularly by judges (I pause to note that this statement is well-made and well-accepted by me) for bringing an independent, impartial and child-focused perspective to the way in which a matter is litigated, especially from an evidence-gathering perspective.
It is that very evidence-gathering perspective, that which is highlighted by survey respondents to the AIFS study as being placed in a position of primacy, participation being secondary, which is the real concern in this case.
The evidence-gathering function has been far from diligently discharged.
The AIFS report also makes clear the same criticisms as highlighted by Ross, Fernando, Bell, Cashmore and Parkinson and others, namely:
A very significant theme in the data from parents, children and young people is their understanding that the focus of the role of the ICL emphasises functions supportive of participation. … Most of the children and young people interviewed conveyed feelings of disappointment and even betrayal in relation to their experiences with the ICL. The accounts of these children and young people indicate that often they were uncertain about what the ICL did, were disappointed by little or no contact with the ICL, and were uncertain as to how their views fed into the decision eventually made.
Whether these children hold such views or will do so in future and following the determination of these proceedings, particularly if determined in a fashion inconsistent with their expressed views and perceptions, is unclear. The groundwork is certainly well-laid for that to be a valid complaint by them.
In returning to the ‘National Legal Aid Guidelines for Independent Children’s Lawyers’, at paragraph 5.3, it is made clear that:
The ICL should seek to provide the child with the opportunity to express his or her views in circumstances that are free from the influence of others.
The ICL should ensure that there are opportunities for the child to be advised about significant developments in his or her matter if the child so wishes, and should ensure that the child has the opportunity to express any further view or any refinement or change to previously expressed views.
That causes some degree of concern, particularly weighted against the concluding portions of the paragraph, namely:
In preparing to make submissions on the evidence as to the weight to be placed on the views of the child, the ICL may consult with the single expert, Family Consultant or other relevant expert in relation to the content of the child's views; the contexts in which those views both arise and are expressed (together with other matters enumerated therein).
I do not seek to suggest, as I do not know, that there has been no consultation with the Family Report writer. However, there has clearly been no consultation with these adolescent children.
In the first Family Report these children were suggested to have expressed a relatively clear view, particularly the younger child, as to the time that they wish to spend with their father. In the first report the children sought and supported far more abundant time with the father than they did at the time of the second report wherein they are suggested to indicate that they either wish to spend no time or spend time only in accordance with their wishes.
In light of the problematic relationship between the parents and their inability to effectively communicate, it would seem, since separation, but certainly at present that these children’s interests could not be properly represented or presented to the Court without their having been met with the Independent Children’s Lawyer in the last two years and since the reports have been prepared.
Under the heading “Meeting the Child”, the “Independent Children’s Lawyer Guidelines” make clear that the Independent Children’s Lawyer is expected to meet with children, (although that is potentially a pejorative term for these young adolescents), unless there are exceptional circumstances. Again, I make clear that this is a forensic decision for the Independent Children’s Lawyer in each and every case - to determine whether a meeting occurs and, if so, when, how, where and how often.
I am conscious that the New South Wales Legal Aid Commission makes specific provision for additional funding for children to be met in furtherance of this expectation.
Certainly, these children have been met, but only once, and some little time ago, before the majority of issues relevant at trial and the evidence prepared with respect thereto has come into being.
The ‘National Legal Aid Guidelines for Independent Children’s Lawyers’ (at paragraph 6.9) make clear that it is the obligation of the Independent Children’s Lawyer to “identify and obtain relevant documentation” prior to hearing. It includes a statement that the Independent Children’s Lawyer should:
…arrange for relevant witnesses such as State Welfare Authority officers, police officers, school teachers or similar persons to give evidence.
I do not expect that the Independent Children’s Lawyer would, except in exceptional circumstances, require those persons to give evidence on oath, but obtaining their records is another matter, and relatively simply achieved through either requesting that the Court make a section 69ZW Order, or issue a subpoena themselves. Neither step has been taken, and thus the proceedings must now be adjourned.
The “National Guidelines” also provides under the same heading:
The ICL is to arrange for the collation of all relevant and reasonably available evidence.
Certainly, it is as plain as a pikestaff the evidence that can and should have been obtained before the conduct of this trial. For well over a year it has been clear that significant evidence was available through the issue of subpoena to at least six, if not more, agencies that would have assisted in either pursuing a line of inquiry to its natural conclusion or would have assisted in corroborating either an allegation or its denial.
The absence of that material and the failure to take the simple steps necessary to obtain it is, in essence, the only reason that the adjournment of these proceedings with significant cost, financial and otherwise, to the parties, their children and the Court now occurs.
For those reasons, I am satisfied that the matter simply cannot continue today. It must be adjourned, and the second day of hearing tomorrow abandoned. Thankfully, the Court has an abundance of work listed as backup tomorrow, so the Court will not be idle. However, the parties’ interests and, more importantly, those of the children, and the determination thereof, will be delayed for another two months.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 1 May 2015
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