Goldman and Goldman

[2017] FamCA 551

FAMILY COURT OF AUSTRALIA

GOLDMAN & GOLDMAN [2017] FamCA 551

FAMILY LAW – JUDGMENTS – Adjournment – Where final orders and judgment are ready to be delivered – Where the mother files an affidavit seeking to adjourn delivery of judgment – Where the mother deposes to a conversation with an administrative officer in the Department of Public Prosecutions – Where there is an affidavit from the administrative officer – Concluded the mother misrepresented the conversation with the administrative officer – Where this is the fourth adjournment application by the mother – Concluded the matter should proceed to conclusion – Ordered the adjournment application is dismissed

APPLICANT: Ms Goldman

RESPONDENT: Mr Goldman

INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

FILE NUMBER: (P)SYC 3001 of 2015

DATE DELIVERED: 23 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 23 June 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Reid Family Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Fernie as agent for Humphreys Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Tiyce & Lawyers

Orders

1. The Application for Adjournment contained within the affidavit of the applicant wife filed 23 June 2017 is dismissed.

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 Goldman & Goldman 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 NEWCASTLE

FILE NUMBER: (P)SYC3001/2015

Ms Goldman

Applicant

And

Mr Goldman

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application by the mother to have the court hear fresh evidence with a view to adjourning the date of delivery of judgment. 

2. The matter was listed today for delivery of judgment.  The application of the mother is an oral application supported by her affidavit sworn on 23 June 2017.  To be scrupulously fair to the mother, on 10 March 2017, which was the sixth and final day of hearing, the orders made clear that in the event that the Joint Investigation Response Team (“JIRT”) investigation was formally concluded, the matter could be relisted before me, or if any party had some further information about the progress of the JIRT investigation, the Court would relist it. 

3. It seems that the mother made some inquiries herself with the Department of Public Prosecutions (“the DPP”) by telephone, and her affidavit sets out her version of events.  In particular, in paragraph 8, the mother asserts that the officer at the DPP whom she spoke to, whom the mother incorrectly referred to as a social worker, who is rather an administrative officer in prosecutions, that the officer, Ms HH, said:

   JIRT only gave us their report a few days ago.  Detective [II] considers that there is enough evidence against [Mr Goldman] to prosecute.  We are in the processing stage.

4. That statement created the possibility that despite the extreme unlikeliness of an administrative officer of the DPP speaking to somebody on the telephone, whom she was unable to properly identify as a parent, would give out that information.  It was appropriate for the Court to make further inquiry about it before proceeding with the matter.

5. Fortunately, the Court was able to be assisted today by the oral evidence of the Acting Deputy Director of Public Prosecutions who gave evidence by telephone.  She said, and I accept:

   That as a matter of public policy, such information as is asserted by the mother to have been given to her by [Ms HH], would not be given out as a matter of policy, and that anyone who did such a thing would lose their job.

6. The acting Deputy Director also said that she personally had no knowledge of any information regarding possible prosecution or not of the father in these proceedings. She was responding on behalf of the Director of Public Prosecution to the assertions made by the mother in her affidavit. 

7. There was also an affidavit from “Ms HH”, and it is of some significance.  I accept the submissions made on behalf of the Independent Children's Lawyer that there is every reason to take into account what Ms JJ said. 

8. So whereas the mother had asserted that she was told that a detective considered there was enough evidence to prosecute the father, the unchallenged evidence of Ms JJ is that the mother, at paragraph 6 of Ms JJ’s affidavit, had said that she had spoken to her own solicitor who had told her that she needed to have something in writing from the DPP that there are “sufficient charges for [Mr Goldman] to be prosecuted”. 

9. Ms JJ took care to respond to that in these terms:

   I said words to the effect of, “No, I can’t put that in writing, and that is not what I said to you.  I said that an advising has come through from whoever, and that this matter is being looked at by this office to see if there is sufficient evidence.” 

10. I consider that the mother has misrepresented the conversation and have no difficulty accepting what Ms JJ says.  As, again, I accept the submission of the Independent Children's Lawyer that Ms JJ is a neutral witness and has given evidence in the context of her job, whereas the mother, given the emotional state that is described by Ms JJ in her affidavit of the mother’s presentation on the telephone, is in a state of great distress and anxious to do anything and everything she can to avoid an unfavourable outcome in these proceeding from her perspective. 

11. I take the following matters into account.

12. Eight months have passed since the JIRT interview in October 2016 where C is said to have made her disclosure.  That fact was known during the course of the hearing and when the hearing concluded on 10 March 2017, the state of the evidence is contained in two ways (1) reference Exhibit 41, the document created in response to a consultation question, “Is there sufficient evidence to substantiate sexual harm?”  And the recommendations in response:

    (1) non-substantiation of harm.  As discussed during our phone call, it does not appear that there is sufficient evidence at this stage to substantiate on a balance of probabilities that sexual harm has occurred.  In addition, it was alleged that the father had held the children’s heads under water and thrown [B] into a wall and punched and kicked her.  There is insufficient detail regarding these events to substantiate physical harm.  There is, however, clear evidence of psychological harm.

13. Without going into the detail that then follows in that document, there is a recommendation that the JIRT assessment might be transferred to Community Services for allocation for what is described as a holistic assessment of the children who seem to be in a concerning emotional state and expressing extreme fear of their father and disruptive behaviours of considerable concern.  That was the state of the evidence on 10 March 2017.

14. On the morning of that day a solicitor, Mr KK, for the New South Wales Police attended in response to a subpoena which had been shortly before issued for their records.  He raised a public interest immunity claim on the basis that the matter had not been yet fully considered.  That too was taken into account.  It is clear that at that time the matter was under consideration and had not been recently transferred.  There is no further evidence now before me of the JIRT investigation proceeding or not proceeding in any particular direction other than what I have referred to in Exhibit 41.

15. What I have learned from the evidence of the Acting Deputy Director of Public Prosecutions is that Ms JJ dutifully went about her administrative job, kept contemporaneous notes, and did her best to be helpful without being inappropriate in responding to her request.  There was, I accept, no suggestion whatsoever that there was, to again quote the mother, “enough evidence against [Mr Goldman] to prosecute”.[1]  That leaves the position as it was at the conclusion of the hearing on 10 March 2017 with the additional information that the mother was willing to affirm an affidavit with matters contained within it which were clearly false.  

    [1] Mother’s affidavit filed 23/06/2017, par 8

16. This case has been a balance of risk from the time an adjournment application came before me the first time on 23 February 2017.  It was the application of the mother at that time to adjourn the hearing pending the outcome of the JIRT proceedings.  That application was refused for the reasons that were given ex tempore at the time. 

17. On 28 February 2017, the first day of trial, leave was granted to re-argue the adjournment application, submissions were made, the application was refused. The trial proceeded.

18. On 10 March 2017, the sixth day, when, on behalf of the police, a public interest immunity claim was raised, the application of the mother was to adjourn the proceedings so that that argument could be had on another day.

19. Today on the listing for judgment there is again an application to adjourn. 

20. As I have before, but even more so in these circumstances, I conclude that the matter should proceed to conclusion.  I cannot accept the submission on behalf of the mother that the children would be safer remaining where they were and that there would be no greater risk if the children remained with the mother than if they moved to the father because of serious matters to investigate.  Indeed, they have been serious matters to investigate, and there is considerable concern expressed in the judgment about the extent to which the intervention of Ms J in the lives of the children, previously the mother’s counsellor, subsequently the children’s counsellor, had in the possible corruption of the JIRT process. 

21. The children were regularly interviewed on the day that they were interviewed by, Single Expert, Dr G and by the JIRT officers themselves.  There was a great deal of pressure put on the children, particularly C.  I have accepted the evidence of Dr G that the children have come to emotional harm in the mother’s care.  These children, who begged their father to come home to them after the physical separation of the parties in July 2014, and who felt distress and some anger that he had not spent as much time with them as they wanted, now purport to hate their father, to want nothing to do with them, and scream and express their fear when confronted with the possibility.  That has been a disastrous outcome for these young girls and it cannot be allowed to go on.

22. I also do not accept the submission that presumably charges are being considered or the case would has been withdrawn or dropped.  I cannot draw that inference.  Eight months have passed.  The Court itself has provided a transcript of Ms J’s evidence.  I cannot speculate as to what the reason is that there has been no formal conclusion to the proceedings, but I draw on the fact that the Department of Family and Community Services considered that the matter should go back to the community for assessment of the family because they could not substantiate harm. 

23. I therefore refuse the application of the applicant to adjourn the proceedings and will now proceed to deliver judgment.

24. Orders are made accordingly.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 23 June 2017.

Associate: 

Date:  2 August 2017