ENGLAND & HARRISSON
[2020] FamCA 1083
•18 December 2020
FAMILY COURT OF AUSTRALIA
| ENGLAND & HARRISSON | [2020] FamCA 1083 |
| FAMILY LAW – PRACTICE AND PROCEDURE – PARENTING – evidence – whether a third party affidavit be struck out pursuant to section 135 of the Evidence Act 1995 – probative value of affidavit evidence – evidence sought to be led in relation to historical allegations of family violence – probative value found to be low – affidavit struck out and affidavit not read into evidence. |
| Evidence Act 1995 ss. 97, 135 Family Law Act 1975 ss. 60CC, 69ZT, Division 12A of Part VII |
| Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd[2018] FCA 264 |
| APPLICANT: | Ms England |
| RESPONDENT: | Ms Harrisson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5095 | of | 2020 |
| DATE DELIVERED: | 18 December 2020 |
| PLACE DELIVERED: | Sydney (via videoconference) |
| PLACE HEARD: | Sydney (via videoconference) |
| JUDGMENT OF: | Altobelli J |
| HEARING DATE: | 9 December 2020 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Ms Burke |
| SOLICITOR FOR THE APPLICANT: | Holmes Donnelly & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Kennedy |
| SOLICITOR FOR THE RESPONDENT: | Tiyce & Lawyers |
| ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The affidavit of Ms B filed 27 October 2020 be and is hereby struck out and removed from the Court record.
The matter be listed for Final Hearing commencing on 21 June 2021 at 10am, with an estimated hearing time of 5 days, before the Honourable Justice Baumann, such hearing to occur in person at the Sydney Registry of this Court
IT IS NOTED THAT
The matter will be referred to the Chambers of Justice Baumann so that trial directions can be made, if necessary.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym England & Harrisson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5095 of 2020
| Ms England |
Applicant
And
| Ms Harrisson |
Respondent
REASONS FOR JUDGMENT
Introduction
Even though the present issue, which is the subject of these reasons for judgment, is about the admissibility of an affidavit having regard to the Evidence Act 1995 (‘Act’), ultimately this case concerns a two year old child X. X’s mother and father disagree about the parenting arrangements which are in his best interests. X’s mother is the applicant. She is 35 years old and is an educator. X’s father is the respondent. He is 38 years old and is also an educator. X’s mother would like him to live with her in New Zealand, but X’s father would prefer that he remains living in Australia, and that a shared care arrangement be implemented.
The specific issue for the Court’s determination is whether or not it should allow an affidavit of Ms B, made 26 October 2020, to be read into evidence. If it is read into evidence, it should be produced to Dr D, the single joint expert who has been engaged to prepare a report in this matter.
Background
The parties met in 2016, and then were engaged and married in 2017. They have lived in various parts of the world including Africa, North America, and in and around Sydney. On the mother’s case, they were living temporarily in Australia whilst en route to New Zealand where she had secured a role as an educator with M Organisation. The COVID-19 pandemic and subsequent border closures prevented the family from travelling to New Zealand. The relationship broke down early in 2020 and the mother commenced the present proceedings in July 2020.
It is important to understand the final orders sought by each of X’s parents. The competing orders establish the parameters of the dispute and assist in understanding and defining what the relevant issues are. As will be seen, this then largely informs a discussion about the relevance and importance of certain evidence.
In the mother’s application filed 28 July 2020, she seeks orders that she have sole parental responsibility in relation to the religious upbringing of X, that otherwise there be equal shared parental responsibility for all other major long term issues but, should the parents be unable to reach an agreement even after family dispute resolution, the mother make such long term decision and inform the father thereafter. She proposed that X would otherwise live with her, and that she be permitted to forthwith relocate the residence of X to K City in New Zealand. The mother proposed that X spend time with the father as agreed between the parents or in the alternate as determined by the Court.
The mother also sought interim orders which included an interim order permitting relocation, and that the father spend supervised time with X in Sydney or in K City on days and at times as agreed between the parents or as determined to be in the best interests of X by the Court. From this Court’s perspective it is significant to note that on both the mother’s final and interim proposed orders, X would be spending time with his father. There is no suggestion of no time. There is no suggestion in the final orders sought that X’s time with his father be supervised. Indeed, the latter is quite unsurprising given the experience and reputation of the lawyers representing the mother.
The father’s response was filed 1 September 2020. By way of final orders, he proposed equal shared parental responsibility, that the mother be restrained from relocating X’s residence outside New South Wales without his written consent, that the father have sole parental responsibility in respect of X’s religious instruction and upbringing, and that otherwise there be an equal time arrangement in respect of X. By way of interim orders once again he proposed limits on the mother’s ability to relocate X’s residence, but otherwise that X live with his mother and spend time with his father each week between 9.30am Sunday to 12 noon on Wednesday. The Court recognises that the father’s solicitors are also highly experienced and reputable.
Whilst the affidavits filed by each of the parents in support of their respective application and response reveal a host of issues that underlie, and ultimately inform, the final determination of the respective proposals, on the face of those proposals a number of issues become apparent. There is a clear issue about X’s religious upbringing. There is an equally clear issue about whether or not X should be permitted to relocate with his mother from Australia to New Zealand. There is a clear issue about what time X should spend with his father.
It needs to be acknowledged that family violence is raised as an issue by both parents against the other. The mother’s allegations about family violence in relation to the father include allegations about coercive and controlling violence. In his evidence the father alleges that the mother was controlling of him, particularly in relation to X, but also that she was violent towards him often in the presence of X.
The Competing Proposals
The father sought an order that the affidavit of Ms B filed 27 October 2020 be struck out and removed from the Court record. The father relies on section 135 of the Act which states:
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.
It is common ground that section 135 of the Act is not excluded by section 69ZT of the Family Law Act1975 and thus clearly applied to the proceedings. The mother opposes the application of the father, and otherwise seeks orders that the affidavit of Ms B be provided to the single joint expert Dr D. She also seeks an order in relation to a peripheral issue pertaining to the cost of the report of Dr D.
The matter has already been expedited for final hearing but the issue for this Court in implementing the order for expedition is whether it should be listed as a four or five day matter as contented for by the mother, or an eight day matter as contented by the father, should the affidavit of Ms B be admitted.
The Affidavit of Ms B
Ms B is the former wife of the father. Based on her affidavit it seems that she and the father met in 2003 when the father was 20, and she was 17. They began dating in 2005 when the father was 22, married in 2007 when he was 24, and separated in 2011 when he was 28. The father is presently 38 years old.
The affidavit of Ms B extends to 24 pages and makes reference to a number of annexed documents. The affidavit sets out in quite meticulous detail what Ms B describes as the history of family violence perpetrated by the father towards her, during their relationship. The Court reiterates that the evidence of Ms B about the violence is both detailed and comprehensive. She refers to physical violence, emotional abuse and control, sexual abuse and financial control. In the final paragraph of her affidavit, Ms B deposes to residing in United States of America and of being unable to travel to Australia, but being willing to give evidence by telephone or video link, if that is deemed acceptable to the Court. The mother’s case was presented on the basis that Ms B would be available to be cross-examined about the contents of her affidavit by way of video link.
The Cases Summarised
The mother’s case for the inclusion of Ms B’s affidavit is comprehensively argued in her case outline document filed 7 December 2020. On the mother’s behalf it was submitted that Ms B’s affidavit was highly relevant to the issue of whether the father’s time should be supervised due to X being at an unacceptable risk in the father’s care. It was further submitted that Ms B’s affidavit goes to the longitudinal nature of the father’s propensity for family violence and that his violent behaviours were not confined to the relatively short relationship between the parties in this case, but rather were longstanding and entrenched behaviours which required the Court’s most serious consideration. The mother’s submissions emphasised that insofar as the mother’s concerns about the father’s violence included coercive and controlling behaviours, by its very nature such evidence was more difficult to produce, thus accentuating the importance of Ms B’s evidence. Equally Ms B’s evidence was important in a case where the parties actually lived outside of Australia for so much of their relationship and thus, for example, business records in Australia would have limited value.
The father’s opposition to the admission of Ms B’s affidavit focused on its lack of relevance, its unfair prejudice to him, as well as the inevitable consequences of having to extend fairness to him by presenting evidence in reply to the evidence of Ms B, which would not only increase the length of the final hearing by four days, but in all likelihood cause a delay in the hearing, in practical terms.
Section 135 of the Evidence Act
Before considering the three limbs to section 135, a number of introductory observations are pertinent. In order to apply section 135 it is necessary to first consider the probative value of the evidence. Probative value is defined in the Dictionary to the Act as:
"probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
The issue of family violence is ultimately a matter for cross-examination and findings at a final hearing. The Court observes that even if the father perpetrated the violence, or some of the violence asserted by Ms B, which of course is denied by him, it doesn’t necessarily rationally effect the assessment of the probability of his asserted violence towards the mother in this case. Some relevant facts in this regard include that he was 28 when the relationship with Ms B ended, and he is now 38. When the evidence of Ms B and the evidence of the parents is juxtaposed, it is clear that the mother and father met five years after the father and Ms B separated, married six years after the separation, and separated about nine years after the separation.
There is a clear sense in which the mother seeks to use Ms B’s affidavit to establish the father’s tendency towards family violence in intimate relationships. Section 97 of the Act deals with tendency evidence but, of course, does not apply to proceedings such as the present one covered by Division 12A of Part VII of the Family Law Act 1975. Nonetheless, it is informative to understand that such tendency evidence would be inadmissible unless the provisions of the Evidence Act were complied with, and the Court thought that the evidence would have significant probative value in relation to a fact in issue: section 97(1)(b) of the Act.
The predictive value of evidence of behaviour in, for example, similar situations such as intimate relationships allegedly characterised by violence can only be useful if it is incontrovertibly true that past behaviour is predictive of future behaviour. But that is not incontrovertibly true. People change. Inadequate parents become good enough parents. Addicted parents manage their addictions. Mental health issues resolve over time. The past is not, therefore, an incontrovertible indicator of the future. Thus, even if the father was violent in his relationship with Ms B, such evidence does not necessarily rationally affect the assessment of the probability of violence in his relationship with the mother in this case. Even before considering what the real issues in this case are, the probative value of Ms B’s evidence is questionable. The Court’s impression of Ms B’s evidence is, therefore, that its probative value is low.
The Court forms this impression in the full knowledge and understanding that the very nature of coercive and controlling violence is that it is patternistic. Even so, this Court opines, the probative value of the evidence in question is low.
Section 135 makes clear that the Court may refuse to admit evidence if its probative value is “substantially outweighed” by certain dangers that will be referred to presently. The Court accepts that the use of the words “substantially outweighed” places a heavy onus on the party seeking exclusion: Smith v Aircraft Maintenance Services Australia (AMSA) Pty Ltd[2018] FCA 264 at [38]. The heavy onus is more likely to be discharged if the evidence about the danger referred to is significant. The dangers referred to include that the evidence might be unfairly prejudicial, in this case to the father, or be misleading or confusing.
The Court does not accept that either of these grounds are established. The affidavit of Ms B will only be admitted if there is cross-examination, a fact accepted by those representing the mother. Provided there is cross-examination, the receipt of the evidence is not, per se, either unfairly prejudicial or misleading or confusing. This conclusion is reinforced by the realisation that the father will, of necessity, be permitted lead such evidence as he considers reasonably appropriate to controvert the evidence of Ms B.
Moreover, the Court does not accept that there is any risk that a trial judge would be misled, confused, or place more significance on the evidence of Ms B than it deserves.
If the father’s application is to succeed, it can only be on the basis that the probative value of Ms B’s evidence is outweighed by the danger that the evidence might cause or result in undue waste of time.
In this regard, the father has identified nine witnesses who he would need to call, in addition to this own evidence of course, to controvert the evidence of Ms B. In addition, he has foreshadowed that he may need to produce documentary evidence from Country F of up to 1000 pages, such documentary evidence being necessary to put to Ms B on the question of prior inconsistent statements, amongst other things. The Court observes that when the father’s Counsel asserted that the hearing could be extended by up to another four days, in substance the mother’s representative could not cavil with that proposition and in reality had to accept that the mother could not constrain the father’s case in response to Ms B’s affidavit.
As the issue of the questionable probative value of Ms B’s affidavit has already been raised, then the Court must have serious concerns about how its admissibility would add complexity to the case without necessarily assisting the resolution of the ultimate fact in issue, that is, whether the mother’s family violence allegations against the father are substantiated, or not. Some of the authorities that have discussed section 135 refer to the incremental probative value of the evidence: see, for example, Odgers, Uniform Evidence Law (15th edition, Thomson Reuters, 2020) The Court must ask itself, if Ms B’s evidence were admitted, would it necessarily enhance, clarify, or render more plausible the evidence of, for example, the mother about the violence that she alleges?
At its highest and most favourable, from the mother’s perspective, the answer would be, perhaps. The question then for the Court is whether on the basis of this possibility the extraordinary addition to the length of hearing of this case can be justified. The converse proposition is whether the admission of Ms B’s evidence would precipitate the Court having to receive potentially voluminous evidence merely in order to evaluate Ms B’s allegations. Fundamental principles of fairness mandate that if Ms B’s affidavit is admitted, the father must be given the opportunity to lead evidence to controvert Ms B’s evidence.
Given the low probative value of the evidence, this Court concludes that the admission of Ms B’s affidavit would result in undue waste of time, for little probative benefit.
The reality of this is case is that family violence is but one of many issues at play, and even if the issue is resolved in favour of the mother, it does not necessarily rationally affect the assessment of her application for relocation to New Zealand, or for sole parental responsibility about a religious upbringing for X. The family violence is but one piece of a complex factual matrix, the parameters of which are delimited by reference to section 60CC of the Family Law Act 1975. Expressed in another way, even if the father is found to have been violent in his relationship with Ms B, that does not necessarily mean that the Court will find he was violent in his relationship with the mother of X, and that does not necessarily mean that she will not be permitted to relocate to New Zealand with X and be granted sole parental responsibility in relation to matters of religious upbringing.
In reality, the focus of both parties on the evidence of Ms B was myopic, as there are many other important issues in this case quite apart from violence, many of which could be potentially more significant to the ultimate decision in X’s case. The admission of Ms B’s evidence is therefore not permitted on the basis that it lacks probative value and its admission would cause or result in undue waste of time.
Conclusion
The orders sought by the respondent will be granted. The affidavit of Ms B filed 27 October 2020 be and is hereby struck out and removed from the Court record.
The Court understands that the report of Dr D is ready to be released and, in the circumstances, there is no longer any obstacle to the report being released.
As foreshadowed, the mother sought to raise another issue about the payment of Dr D’ fees. She has already agreed to pay these fees, but contends that it is now apparent that the father has the financial resources to contribute towards the cost of the fees and should do so. This is put in contention by the father who asserts that whilst he has funds in the United States, he cannot access them in Australia, for the purpose stated. The question of whether or not the father has access to US funds whilst in Australia is a factual matter that cannot be resolved at an interim hearing, on the available evidence. The Court declines to adjudicate on this issue.
This case has already been expedited by a learned Registrar. Having regard to the matters put to the Court, it assesses the length of this hearing to be no more than five days. The earliest five-day hearing that can be accommodated by the Court is 21 June 2021 before the Honourable Justice Baumann. I will make an order listing the matter to that date, and refer the matter to Justice Baumann so that trial directions can be made, if necessary.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Altobelli delivered on 18 December 2020.
Associate:
Date: 18 December 2020
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