HARRIS & CAVANAGH

[2018] FamCA 1138

FAMILY COURT OF AUSTRALIA

HARRIS & CAVANAGH [2018] FamCA 1138

FAMILY LAW – PARENTING – interlocutory – s 67ZT – rules of evidence should apply – reasons set out.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

APPLICANT: Mr Harris

RESPONDENT: Ms Cavanagh

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2917 of 2015

DATE DELIVERED: 28 February 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 28 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howe

SOLICITOR FOR THE APPLICANT: Belleli King & Associates

COUNSEL FOR THE RESPONDENT: Mr Korke

SOLICITOR FOR THE RESPONDENT: Robert Halliday And Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stavrakakis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That pursuant to s 69ZT(3) of the Family Law Act 1975, all of the rules of evidence should apply subject to any ruling to the contrary at trial.

2. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 23 May 2018 subject to any part heard case as a three day case.

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

   TIMETABLE:

4. By 4 pm on 30 March 2018 the applicant file and serve upon all other parties:

   (a)all affidavits of evidence to be relied upon.

5. By 4 pm on 20 April 2018 the respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

6. By 4 pm on 4 May 2018 the applicant file and serve any affidavit in reply.

7. By 4 pm on 18 May 2018 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

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

   SUBPOENAE

9. 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.

10. By 4 pm on 22 May 2018 all parties file electronically to ...  a case outline in one document setting out:

    (a)     the outline of the issues in dispute;
    (b)     the list of the affidavits to be read;
    (c)     a concise set of orders to be sought;
    (d)     the list of objections to evidence requiring a ruling;

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

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 Harris & Cavanagh 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 MELBOURNE

FILE NUMBER: DGC 2917 of 2015

MR HARRIS

Applicant

And

MS CAVANAGH

Respondent

REASONS FOR JUDGMENT

1. This matter is set down for a final hearing on 23 May 2018.  Although the case was listed in the Federal Circuit Court for a final hearing in August 2017, a cursory reading of the outlines of case documents there filed, along with the discussions that were held this day with the legal practitioners, indicates that the respective parties positions about the final orders they would propose, are not entirely fixed.

2. For example, the mother’s position in writing is that there should be no time between the father and the parties’ child.  Her practitioner however indicates that it may not be her final position.  In my view, that is unsatisfactory.

3. The father’s position is that there should effectively be no constraints on his time with the parties’ child but he also relies on affidavits which, even on a cursory examination, may not satisfy the relevant provisions of s 55 and 56 of the Evidence Act 1995 (Cth). His counsel conceded that he would want to file a fresh affidavit and a more purposeful proposal for orders even though he does not now wish to file an amended application.

4. On any view, the parties’ positons are as far apart as parents could be in respect of proposals about the future relationship that the father should have with his son.

5. Section 60B of Family Law Act 1975 (Cth) (“the Act”) sets out the objects of the Act which are all directed towards a meaningful involvement of parents in their children’s lives as well as making decisions about them. Those sorts of concepts however are always underpinned by the protection of a child from physical and psychological harm.

6. It will therefore be readily apparent that the parties’ current positions may not necessarily be consistent with either of those principles in s 60B of the Act.

7. Section 69ZT of the Act provides that the rules of evidence (of a more forensic nature) do not apply in a parenting case but the court may decide to apply one or more of those provisions in the Evidence Act if satisfied that the circumstances are exceptional. In my view to make an order which excludes a parent from a child’s life or conversely, leaves no room for protection, is an exceptional case. Before making any determination however the court has to take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the value of the evidence from a probative point of view and also, the powers of the court to give directions at trial.

8. In respect of the importance of the evidence, I cannot highlight enough the significance of focussing on what is a determination as to whether or not the parties’ child is likely to be subject to either physical or psychological harm depending upon the nature of the order made.  The evidence is therefore critical. 

9. The nature of the subject matter concerns serious allegations involving the father who is currently on the sex offender’s register and who has been dealt with by the criminal law system.  The evidence of the mother is that there were other allegations which did not resolve in charges but which troubled the police officer.  Rather than have that evidence called in a simple belief statement, the author of any such evidence needs to turn his or her mind to the admissibility of it.  That would not necessarily be the case if the rules of evidence did not apply.

10. In addition, that evidence is significant because it will give some guidance as to whether or not the father’s undisputed behaviour was an aberration or whether it remains a serious issue in circumstances where he has been found by a psychologist to be a low risk.  In any event, the court can make changes to the evidentiary rulings as the trial proceeds. 

11. In my view there are exceptional circumstances here and the orders relating to the rules of evidence should apply.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 February 2018.

Associate: 

Date:  27 March 2018