GARMAN & JACKSON

[2013] FamCA 54

FAMILY COURT OF AUSTRALIA

GARMAN & JACKSON [2013] FamCA 54

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

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

APPLICANT: Mr Garman

RESPONDENT: Ms Jackson

INDEPENDENT CHILDREN’S LAWYER: Barbayannis Lawyers

FILE NUMBER: MLC 9125 of 2011

DATE DELIVERED: 21 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lynch, Solicitor

SOLICITOR FOR THE APPLICANT: Peter Lynch

COUNSEL FOR THE RESPONDENT: Ms Rothschild, Solicitor

SOLICITOR FOR THE RESPONDENT: Elisa Rothschild

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stavrakakis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barbayannis Lawyers

IT IS ORDERED THAT

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garman & Jackson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9125  of 2011

Mr Garman

Applicant

And

Ms Jackson

Respondent

REASONS FOR JUDGMENT

1. This case was listed for First Day Hearing before me on 18 January 2013. I have set the matter down for trial of both the parenting applications and the competing applications for property settlement before me as the first matter on 5 August 2013. I have also made directions for the filing of affidavits by the parties and for the preparation of the matter for trial.

2. There is one child of the relationship who is now 10 years of age. There have been allegations in this case of both sexual abuse and family violence directed at both the mother and the child. The father denies the allegations and it is his case that the mother is fabricating these allegations to prevent him seeing the child.

3. The matter has been investigated by the Department of Human Services, the father has been assessed by Dr K and Dr N has prepared a report. In her report dated 21 February 2012 Ms C, a Senior Child Protective Worker, reported that it was her assessment on the balance of probabilities that the child had been sexually abused by her father. However, Dr N concluded that the information that the child gave about the allegations of sexual abuse were “seriously contaminated” and that, as the alleged incidents appeared to have occurred mostly while the mother was present, that those incidents appeared to have been perpetuated by the dynamics between the father and the mother rather than predatory behaviour by the father towards the child. Dr K, who carried out a psychosexual assessment of the father, concluded that the father should not be prevented from spending normal time with the child. This evidence has not been tested.

4. Following the release of the expert evidence on 3 April 2012 orders were made by Senior Registrar FitzGibbon following a contested hearing that the father, subject to certain conditions, spend time with the child for no more than 3 hours at times and dates to be agreed in consultation with the supervisor to be nominated by the Independent Children’s Lawyer. On the first four occasions the father was to spend his time with the child in a public place but thereafter he could spend time at his home at his election. These orders, for reasons which I do not need to set out, have not been complied with. Suffice to say that the mother says that the child is frightened of the father and does not want to spend time with him and would be at risk of abuse if she were to do so. The ICL, after consultation with Dr N, proposed that the parties and the child should attend family therapy and that at the same time the father should commence spending time with the child in accordance with the orders. There has been no application to discharge those orders nor was there any appeal against those orders.  I have made orders by consent with respect to both the family therapy and the commencement of the father’s time with the child.

5. It was submitted on behalf of the father that the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s 69ZT(1) of the Family Law Act 1975 (Cth). In order to apply all or any of the provisions of the Evidence Act which, by virtue of s 69ZT(1) do not apply, the Court must be satisfied that the circumstances are “exceptional” and in determining whether the circumstances are “exceptional” must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order, to give a direction in relation to the evidence and any other matters the Court considers relevant (s 69ZT(3) Family Law Act 1975 (Cth)). Neither the solicitor for the mother or Counsel for the ICL had a particular view as to whether or not the rules of evidence should apply.

6. These proceedings were commenced in the Federal Magistrates Court of Australia and were transferred to this Court on 22 November 2011. The matter was assessed as not being an appropriate matter for inclusion in the Magellan List of Cases. Whether or not a matter is in the Magellan List is not itself determinative of whether or not there are exceptional circumstances that require the application of the rules of evidence.

7. The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the child’s best interests and to make orders that will best promote that child’s best interests. The Court is not necessarily required to reach a definitive conclusion as to whether or not a child has been sexually abused and that determination is subservient and ancillary to the Court’s obligations to determine what is in the child’s best interests. The test to be applied in the cases involving allegations of sexual abuse is that of “unacceptable risk”.

8. Notwithstanding that the mother ultimately consented to the re-introduction of the father’s time with the child subject to the recommendations of the family therapist, it is the mother’s case that the child should not spend any time with the father because she is at risk of being sexually abused. Whether the Court ultimately makes a finding that sexual abuse has occurred or that there is an unacceptable risk of abuse those findings should not be lightly made. The evidence in relation to the allegations of sexual abuse, particularly in circumstances where that abuse has been substantiated by DHS but the other experts have taken a different view, is therefore likely to be of particularly significance in these proceedings.

9. If the mother’s case were to succeed based upon a finding either that the father has sexually abused the child or that there is an unacceptable risk of abuse to the child, the outcome of the case would necessarily have a significant impact upon the father and more importantly upon the child in circumstances where the orders might preclude her having any relationship with her father. In those circumstances, given the importance of that evidence and the significance of the possible outcome as a result of the findings based upon that evidence, I am of the view that in this case there are exceptional circumstances and that the rules of evidence should apply. I propose to order accordingly.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 February 2013.

Associate: 

Date:  21 February 2013