Golla and Rau

[2015] FamCA 21

FAMILY COURT OF AUSTRALIA

GOLLA & RAU [2015] FamCA 21

FAMILY LAW – PRACTICE AND PROCEDURE – Section 69ZW order – all of the provisions of the Evidence Act 1995 (Cth) to apply to the proceedings.

Family Law Act 1975 (Cth)

APPLICANT: Mr Golla

RESPONDENT: Ms Rau

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 11592 of 2009

DATE DELIVERED: 12 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goldsworthy

SOLICITOR FOR THE APPLICANT: Gpz Legal Pty

COUNSEL FOR THE RESPONDENT: Ms McCreadie

SOLICITOR FOR THE RESPONDENT: Perry Weston Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Webb

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

1. Pursuant to s 69ZT(3) all of the provisions of the Evidence Act 1995 (Cth) shall apply to these proceedings.

2. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin as the fourth case in the monthly list commencing on 29 June 2015 not to be called before 10 am on 7 July 2015 as a four day matter.

3. The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

1. By 4 pm on 20 February 2015 the applicant file and serve upon all other parties all affidavits of evidence to be relied upon.

2. The applicant pay all required court fees by 4 pm on 20 February 2015.

3. By 4 pm on 13 March 2015 the respondent file and serve upon all other parties all affidavits of evidence to be relied upon.

4. By 4 pm on 27 March 2015 the applicant file and serve any affidavit in reply.

5. By 4 pm on 19 June 2015 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

6. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

FAMILY REPORT

1. Pursuant to s 62G (2) of the Family Law Act, the parties attend upon and at the direction of Ms M (or such other expert as the parties agree) for the purposes of the preparation of a family report not to be commenced until after 13 March 2015 but to be completed and released by 5 June 2015.

2. The said expert:

   (a)may require a party to attend with, or bring in, a child whose interests may be affected by the proceedings;

   (b)may have access to the court file (but be conscious that the evidence of the parties is contained in their affidavits as ordered above);

   (c)may have access to any documents produced under subpoenae that have been released for inspection;

   (d)should consider the issue of unacceptable risk to the children having regard to the orders proposed by either party and the allegations that each party has made; and

   (e)should advise the Court generally about matters of child welfare and development.

SUBPOENAE

1. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

CASE MANAGEMENT

1. The registrar may vary the filing timetable under these orders.

2. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

3. Any rulings required on objections to evidence shall be set out in the case outline.

4. By 4 pm on 3 July 2015 all parties file electronically to … a case outline in one document setting out:

   a.               a concise set of orders to be sought;

   b.              the list of the affidavits to be read;

   c.              the list of objections to evidence requiring a ruling;

   d.              the outline of the issues in dispute; and

   e.              a list of assets and liabilities.

COSTS

1. At the commencement of the hearing, each party shall provide the court with a statement setting out their costs incurred to that date, the source of any payments made and what costs are expected until the completion of the hearing.

2. That each party have liberty to apply to Justice Cronin in respect of:

   a.            Any disagreement about the appointment of the single expert witness;

   b.The admissibility of evidence in anticipation of having to respond by affidavit.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Golla & Rau 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 11592 of 2009

Mr Golla

Applicant

And

Ms Rau

Respondent

REASONS FOR JUDGMENT

1. This is a parenting matter involving two children aged 10 years and 7 years respectively. In 2010, the parties consented to final parenting orders in the Federal Circuit Court. In 2013, serious allegations were made against the husband of impropriety. Further allegations have been made by the children in relation to the paternal grandfather. The Department of Human Services appropriately has been engaged and filed a report which is admissible under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”).

2. In discussions with counsel for the parties, all agreed that because of the serious nature of the allegations together with the consequences for the children if a finding of unacceptable risk was found, attention to detail was necessary and it would be sensible in the circumstances, to have the rules of evidence apply.

3. Section 69ZT is clear. Parliament intended that the provisions of the Evidence Act not apply to child-related proceeding having regard to the importance for children of the Court dealing with substance rather than form. However, in circumstances which the Court considers are exceptional as I do here, the Court can direct the parties’ attention to establishing allegations particularly in relation to children on proper proofs.

4. In this case, as I indicated in discussion, the consequences for the children one way or the other are serious.  The subject matter of these particular proceedings concerns whether or not there is an unacceptable risk that the children will be sexually abused.  Allegations have not only been made in this case but they continue to be made by the children including to objective parties such as the Department of Human Services workers.  Whilst some of those allegations have an air of fantasy about them and indeed implausibility, others have sufficiently concerned the Department of Human Services to indicate that its view as at October 2014 was that the husband’s time with the children should be supervised.  The Senior Registrar of the Court decided that that was the appropriate outcome for the interim hearing before him.

5. The importance of the focus of the evidence on unacceptable risk is obvious.  The probative value of the evidence about what was said and how it was said not to mention the depth of the expert evidence, is something which is critical for the lives of these children in the future.  In those circumstances, the case is an exceptional one and in my view, the rules of evidence should apply.  Orders will be made accordingly.

I certify that the preceding Five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 January 2015.

Associate: 

Date:  12 January 2015