Herbert and Herbert
[2008] FMCAfam 884
•7 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HERBERT & HERBERT | [2008] FMCAfam 884 |
| FAMILY LAW – Parenting orders – ouster of Evidence Act provisions by section 69ZT – whether specific provisions should be re-introduced – exceptional circumstances – whether “omnibus” order as to ousted provisions being re-introduced is available. |
| Family Law Act 1975 (Cth), ss.69ZN, 69ZQ, 69ZT & 69ZX Evidence Act 1995 (Cth), ss.27, 28, 39, 47, 48, 59, 69, 76 & 135 |
| Applicant: | MS HERBERT |
| Respondent: | MR HERBERT |
| File number: | ADM 4063 of 2006 |
| Judgment of: | Lindsay FM |
| Hearing date: | 7 August 2008 |
| Date of last submission: | 7 August 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 7 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Basheer |
| Solicitors for the Applicant: | Bronwyn Zanker & Co Lawyers |
| Counsel for the Respondent: | Mr McGinn |
| Solicitors for the Respondent: | Mead Robson Steele |
| Counsel for the Independent Children's Lawyer: | Ms Horvat |
| Solicitors for the Independent Children's Lawyer: | Barr Lawyers |
IT IS NOTED that publication of this judgment under the pseudonym Herbert & Herbert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 4063 of 2006
| MS HERBERT |
Applicant
And
| MR HERBERT |
Respondent
REASONS FOR JUDGMENT
The application by the wife's counsel for the tender of some documents this morning precipitated a discussion of some fundamental matters arising from s.69ZT of the Family Law Act 1975 (the “Family Law Act”). I will come to the specific provisions of the Evidence Act 1995 (Cth) (the “Evidence Act”) pursuant to which the tender was sought in a moment, but before we get to that stage, of course, we have to ascertain which provisions of the Evidence Act apply to these proceedings. These are child‑related proceedings, of course, and Division 12A of Part VII of the Family Law Act creates specific rules for the conduct of child‑related proceedings.
Section 69ZT by its terms excludes in the first instance the operation of what might be thought to be fairly fundamental provisions of the Evidence Act, and the significance of the exclusion is magnified by the provision made in sub-s.(5) of s.69ZT that the exclusion does not revive the operation of a rule of common law which, but for sub-s.(1), would have been prevented from operating.
Divisions 3, 4 and 5 of Part 2.1 of the Evidence Act are excluded. Division 3 of Part 2.1 contains such fundamental provisions as the Court’s control over the questioning of a witness; the very opportunity a party has to question witnesses (s.27); and the order of examination‑in‑chief, cross‑examination and re‑examination (s.28). Division 5 of Part 2.1 contains the crucial provisions of the Evidence Act with respect to the conduct of cross‑examination. Similarly, the significance of the exclusion of Parts 3.2 to 3.8 of the Evidence Act effected by s.69ZT(1)(c) of the Family Law Act should not be overlooked. That is the very detailed provisions of the Act regulating the issue of hearsay and then the various exceptions to the hearsay rule.
Section 69ZT provides that those sections do not apply to child‑related proceedings. Sub-s.(2) then goes on to say:
The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
The very terms of that section perhaps alerts us to the extent to which the ramifications of s.69ZT(1) may not have been thought through in their entirety by the draughtsmen. Sub-s.(2) contemplates that the effect of the ouster of the Evidence Act provisions will admit evidence not otherwise admissible. What does not appear to have been contemplated is the effect on the ouster of facilitative provisions, that is a situation where, as we will see hereunder, the provision ousted is a facilitative rather than an exclusionary provision.
Sub-s.(3) of s.69ZT gives the Court an opportunity, as it were, to reintroduce those fundamental rules of evidence if the Court is satisfied that the circumstances are exceptional and provided the Court has taken into account the matters that are set forth in sub-s.(3)(b).
Section 69ZT and the other provisions of Sub-Division D of Division 12A of Part VII of the Family Law Act have been the platform upon which the Family Court, at least, has constructed the so‑called “Less Adversarial Trial” process. That is not a process that has been adopted or is intended to be adopted by this Court, but the provisions of s.69ZT apply to child‑related proceedings in this Court as much as they do to proceedings in the Family Court.
Section 69ZX complements in many way s.69ZT. It provides:
(1)In giving effect to the principles in section 69ZN, the court may:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
(d)if the court considers that expert evidence is required—give directions or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert’s evidence; and
(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:
(a) about the use of written submissions; or
(b) about the length of written submissions; or
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence; or
(e) that particular evidence is to be given orally; or
(f) that particular evidence is to be given by affidavit; or
(g)that evidence in relation to a particular matter not be presented by a party; or
(h)that evidence of a particular kind not be presented by a party; or
(i)limiting, or not allowing, cross‑examination of a particular witness; or
(j)limiting the number of witnesses who are to give evidence in the proceedings.
(3) The court may, in child‑related proceedings:
(a)receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b)adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Sections 69ZN and 69ZQ (which appear in Sub-Divisions B and C of Division 12A of the Family Law Act) also provide the setting within which these evaluations are made.
It is obviously of fundamental importance for the parties, before the trial process is embarked upon, to understand the basis on which the trial is taking place, and it may be that specific attention has to be given at the outset of each child‑related proceeding that comes before the court so as the specific provisions of the Evidence Act, which will continue to be excluded on account of s.69ZT(1), can be identified.
These are proceedings that relate to the parenting orders that should be made with respect to four children. The affidavit material and the way in which the proceedings have been conducted to date, indicate to me that the contention of one parent, the mother, is that the other parent, the father, is a parent whose children should not live with him, should not spend time with him and, as I understand it, should not communicate with him. That is a proposition that finds support, at least prima facie, in the recommendations of the family consultant who will be called by the Independent Children’s Lawyer.
So the proceedings are unusual in the significance of the contest that is afoot. This is not a child‑related proceeding that relates to the specific terms or conditions upon which “live with” or “spend time with” arrangements take place. This is a contest as to whether there should be any “live with” or “spend time with” arrangements at all in relation to a parent and four children.
I think that factor on its own is enough to persuade me that the circumstances are exceptional, and in those circumstances it seems to me appropriate to indicate as near as possible to the outset of the proceedings that the Court has decided to apply - to use the language of sub-s.(3) of s.69ZT of the Family Law Act - all of the provisions of the Evidence Act to which sub-s.(1) of s.69ZT applies. I will say why I have adopted that course.
Sub-s.(b) of s.69ZT(3) requires me to take into account:
(i) the importance of the evidence in the proceedings;
(ii) the nature of the subject matter of the proceedings;
(iii) the probative value of the evidence; and
(iv) …
The combination of the reference in sub-s.(3) to “an issue in the proceedings” and then in sub-s.(iii) to “the probative value of the evidence” suggests that in a child-related proceeding the process will be the identification of issues and then the evaluation of which sections of the Evidence Act the subject of the general legislative ouster should apply to that issue.
I do not think that the significance of s.69ZT is necessarily properly appreciated in all child-related proceedings. By way of examples, unless the Court re-introduces the relevant provisions of the Evidence Act (shown hereunder in parentheses) there is:
a)no entitlement to question a witness (s.27);
b)no order of questioning (s.28);
c)no limits to re-examination (if cross-examination has been permitted (s.39);
d)no ability to tender documents in evidence (s.47);
e)no basis for not receiving hearsay or, if the rule against admission hearsay is adopted, of the permitting of any exceptions to it (passim, Part 3.2); and
f)no basis for rejection of opinion evidence (s.76) or, if the rule against admission of opinion is adopted, of permitting any exceptions to it (passim, Part 3.3).
So, in this case, the evidence proposed to be called by each party would have to be evaluated against all of these provisions and decisions made as to which of the provisions ousted should be re-introduced. The Court can do this of its own motion or may be asked by a party to do so. If this process were not undertaken, no party would know as the hearing commenced whether, for example, they had a right to question a witness at all. The matter would need to be evaluated on an issue by issue basis. Every time evidence was susceptible to challenge on the basis of it being hearsay or opinion the relevant issues would need to be identified and that process undertaken. Correspondingly for the other ouster provisions, such process would need to be undertaken.
It can be readily seen that such process might occupy one of the two days allocated for a trial.
I do not propose to do that in this case. It would be a significant waste of the limited time the Court has available to determine the matter in that way but, more importantly, it seems to me that the assessment as to the applicability of the provisions can be made at the outset and in a comprehensive way in any event. It is a matter of setting the rules by which this controversy, carrying with it such significance for the parties and the children, should take place. I recognise the omnibus nature of the order I propose to make. But I am, after all, simply proposing to apply the evidentiary laws of the Commonwealth to this important dispute. In any event, it is the only practical course open to me.
No party speaks against the course I am proposing. Its legislative foundation is to be found in s.69ZX of the Family Law Act.So, having decided that all of the provisions of the Evidence Act referred to in s.69ZT(1) of the Family Law Act apply to these proceedings, it is then a matter now, on the application of the wife, of considering the specific provisions which would allow the introduction into the evidence of the documents that the wife sought to tender. They are a collection of documents that I am told - and this does not appear to be controversial - have been extracted from the records of the primary school which the children are, or, at least at specific periods of time, were, attending.
Section 48 of the Evidence Act allows for the adduction of evidence of the contents of a document. Specifically, sub-s.(1)(e) allows for the tender of documents that form “part of the records of or kept by a business”, and I am satisfied, having regard to the Dictionary definition of “business” that appears at the end of the Evidence Act, that a school of this nature is such a business. The documents all purport to be copies of the documents in question.
That is not the end of the matter in terms of admissibility, of course, because now that we are applying the rules of the Evidence Act that were otherwise excluded by s.69ZT of the Family Law Act, s.69 of the Evidence Act has applicability. Section 69 has applicability because, if admitted into evidence, the documents would have the effect of introducing evidence of an out‑of‑court representation (a previous representation, in terms of the Dictionary definition that appears at the end of the Act).
Section 69 of the Evidence Act provides:
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b)contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2)The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a)by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b)on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
Turning to the documents individually, this is the first issue that arises with respect to one of the documents, a document identified by reference to its date of 5 March 2007. It is headed “Confidential”.
It has at the bottom “[Ms P], Principal”. That is a document, it seems to me, that is caught by sub-s.(3) of s.69 of the Evidence Act. Sub-s.(3) provides:
Subsection (2) does not apply if the representation:
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b)…
That document begins with a statement by Ms P that it is written at the request of Ms Herbert for legal purposes in relation to the issue of custody of her children. I think that circumstance in itself is enough to bring into operation the provisions of the Evidence Act which would exclude this previous representation on the basis of it being hearsay, and I will rule accordingly.
There are then two documents which I would propose to deal with together. One is headed “[Ms P]” and begins by indicating it is an email from Mr R sent Monday, 20 November 2006, and the second of these two pages is a document that is headed “To: [Ms P]. Subject: re Ms L - ongoing parent dispute”.
It seems to me that, satisfying as they do the provisions of s.48 of the Evidence Act and not otherwise raising any difficulties with respect to the previous representations within them, those two documents should be admitted into evidence, and together will be admitted into evidence as Exhibit 12.
The next document I propose to deal with is a document headed “[Ms P]” and then underneath, “Subject: FW [B] update”, and there is a series of email exchanges set out in that document, but Ms Basheer for the wife made it clear that what was sought to be introduced into the evidence was the handwritten addendum at the bottom of the page, which is dated 11 May and says:
[Ms Herbert] -
that is the wife in these proceedings -
came to the front office. She had a black eye, with significant bruising. This was the last time that I saw [Ms Herbert] before she went -
and then the photocopy is unclear, but then there appears to be the signature of Ms P.
It is plainly a document that satisfies the criteria for introduction as a business record in terms of s.48. It is a document that, pursuant to sub-s.(2) of s.69 of the Evidence Act, is not liable to be excluded on account of the application of the hearsay rule, but my concern in relation to this document arises from other provisions of the Evidence Act which continue to apply to these proceedings.
Section 135 of the Evidence Act provides:
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;
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
The issue of family violence is front and centre in these proceedings. That is plain from the case outline document of the wife. It is plain from the terms of the two reports of the family consultant and from the affidavit material which (in the sense of making findings) the wife has filed. It is plainly going to be important to resolve the issue of family violence, which in turn is going to have significance with respect to the application of presumption of equal shared parental responsibility as well as to a host of other matters under Part VII of the Family Law Act. The Court should be careful in admitting into evidence on such a contest only that evidence which each of the parties has an appropriate opportunity to test.
The document which would otherwise be admitted as a business record of the school has the effect of providing, if admitted, substantial corroboration of the fact of injuries having been sustained by the wife on or about a certain date, if not as to the identity of her assailant. As I say, because of the importance of the issue of family violence, I think we should be cautious about permitting the introduction of such significant material where patently the person who makes the representation (Ms P) would not be amenable to challenge in cross‑examination in the usual way. It has not been suggested that there is any reason why Ms P could not be called upon subpoena to give evidence in any event. I think, pursuant to the general discretion the Court has pursuant to s.135 of the Evidence Act, the tender of that document should be refused as being unfairly prejudicial to the father in these circumstances.
That leaves a document which is headed “Statement re [Mr Herbert] - Actions on School Grounds”, which is a typed document which has some handwritten amendments. It is not immediately obvious who the author of the document is, but I think inferentially it is Ms P. It is a document that addresses events that occurred in February. It looks as if it is February of 2007.
It is a document that purports to record observations of the parents in or about the school premises and the impact of the behaviour of the parents upon certain of the children; the child [B] in particular. It is not a document that purports to be or inferentially is a document prepared in response to a request by a party or by a legal representative of a party. It is a document that has about it a quality of being a record made in the ordinary course of going about the business of being a school principal or a school officer. It is a document that purports to record the observations of that school principal or officer whilst she is going about her business.
Whilst I have given consideration to whether it might be construed as being unfairly prejudicial to the father to permit the introduction of the evidence, I think it is that quality - the fact that it is so closely associated with the proper performance of the duties of the school principal or officer - that persuades me that it is a document that the legislature had in mind in framing the provisions of the Evidence Act which would permit the introduction into the evidence of such a representation. That is, the combined effect of permitting the tender of the document as a business record and then the provision in s.69 of the Evidence Act which quarantines the document from being excluded on account of the hearsay rule, is that the document can be admitted into evidence.
For the reasons given, that document will be admitted as Exhibit 13.
Questions relating to the tender of documents by the wife have been resolved by the application of the clear and comprehensive rules found in the Evidence Act. The rules are not arbitrary. They are logically explicable. I have done so without vitiating any of the principles applicable to child-related proceedings described in s.69ZN of the Family Law Act. How the Court would have been able to go about this task in the context of the evidentiary free-for-all which would have followed upon falling in with the ouster provisions is difficult to contemplate.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 19 August 2008
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