Ellis and Cicero

[2012] FamCA 684

FAMILY COURT OF AUSTRALIA

ELLIS & CICERO [2012] FamCA 684

FAMILY LAW - EVIDENCE - The admissibility of the evidence of a person under 18 - Where permission for the child witness to give evidence has previously been given - Where the Family Report writer has assessed the child as being of sufficient maturity to give evidence

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Ellis

RESPONDENT: Ms Cicero

INDEPENDENT CHILDREN’S LAWYER: Ms Hawdon

FILE NUMBER: BRC 3079 of 2010

DATE DELIVERED: 13 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 13, 14 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kirkman-Scroope

SOLICITOR FOR THE APPLICANT: Allansons Solicitors

COUNSEL FOR THE RESPONDENT: Mr Laws

SOLICITOR FOR THE RESPONDENT: Odyssey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Best Wilson

Orders

1. To the extent that it be required, leave be granted to Ms O to give oral evidence.

2. The Father be granted leave to file and read an affidavit of the Father that responds to the affidavit of Ms O.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellis & Cicero 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 BRISBANE

FILE NUMBER: BRC 3079 of 2010

Mr Ellis

Applicant

And

Ms Cicero

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this case, the Mother seeks to rely upon Ms O as a witness in the proceedings. Ms O is not yet eighteen years of age, but having been born in December 1994, is not far away from her attaining her majority.

2. The objection is taken by the Father to the Mother relying upon the evidence of Ms O essentially on the basis that Ms O is a child, and allied with that submission, that as a child, Ms O is vulnerable and has been subjected to undue influence, if it may be termed that, in providing an affidavit.

3. By Order of his Honour Justice Bell made on 29 May 2012, his Honour ordered that Ms O be granted leave to swear an affidavit in these proceedings. Submissions made on behalf of the Mother are that this was in effect leave being granted to the Mother under the Family Law Rules 2004 (Cth) for there to be evidence of a child in the proceedings. Ms Kirkman-Scroope, Counsel for the Father, submits to the contrary; submitting that his Honour simply ordered that there be an affidavit by that witness and that his Honour did not resolve the question of whether or not the Mother ought be entitled to rely upon that witness.

4. Section 100B of the Family Law Act 1975 (Cth) is the relevant provision in relation to parties being entitled to rely upon the evidence of a child, and Foley’s case is but one of the authorities in relation to the circumstances in which the Court will permit reliance upon a witness who is a child.

5. As is set out in the affidavit of Ms O, she was a partner of the Father for a period, and indeed they share a child, namely B. Given the issues that arise in this case, it seems to me that there cannot be any doubt that Ms O can provide relevant evidence, and she seeks to do so in her affidavit. It is open to the Father, via his Counsel, to challenge the material she advances in her affidavit in the course of cross-examination, and in particular, by reference to subpoenaed documents that were provided for the purpose of this application, to the extent that the Father would suggest that Ms O has been induced or influenced unduly to provide the evidence she provides.

6. I am satisfied that, if not already granted by the Order of 29 May 2012, leave ought be granted to the Mother to rely upon the evidence of Ms O. I am informed that Ms A gave oral evidence on the hearing leading to the Order of 29 May 2012 and that Ms A assessed Ms O to have a level of maturity upon which the Court could rely in concluding that it could have confidence that Ms O is capable of providing relevant evidence to the Court.

7. If the affidavit of Ms O is relied upon by the Mother, the Father seeks the opportunity to respond to that material. He has apparently prepared an affidavit in response that has very recently, namely last Friday, been provided to the Mother. Ms Kirkman-Scroope submits that despite the terms of paragraph 6 of the Order made by Justice Bell and the Orders of 29 May 2012, which required any response to be filed and served by 15 July 2012, I ought permit the Father the opportunity to provide his affidavit in response.

8. Whilst it may be true, as Ms Kirkman-Scroope submits, that the Mother has been on notice that the Father took issue with the Mother’s reliance upon Ms O since 28 May 2012, it remains the case that the Father did not provide his material in response to Ms O’s affidavit in accordance with the relevant Order. It is therefore necessary for the Father to be given leave to be able to rely upon that affidavit.

9. Mr Laws makes submissions to the effect that the Mother would be prejudiced by the late delivery of that material because he will not have the opportunity to obtain the Mother’s instructions in relation to that affidavit. However, on balance, it seems to me that given the issues raised and the importance of the issues raised by Ms O potentially to the outcome of these proceedings in circumstances where I am permitting the Mother to rely upon Ms O, leave ought be given to the Father to respond, despite the Father’s failure to comply with the relevant directions in relation to the timing of his response. I would, in circumstances where it is submitted that the Mother may suffer prejudice by not having had the opportunity to sit down with her lawyers to go through that response, allow an opportunity for that to occur and, if necessary, to adjourn the proceedings for a short time to enable that to occur in circumstances where the Father is to be the first witness.

10. I would have thought, though, in circumstances where the Father is the Applicant and the first witness to be called, the matter could proceed, it now being 11.30 am, for the cross-examination to commence of the Father, and if the point is reached where Mr Laws needs to get instructions in relation to the Father’s response as referred to, I would then grant the adjournment, otherwise that matter can be dealt with over the luncheon adjournment.

11. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 13 August 2012.

Associate: 

Date: 17 August 2012