Holgar & Stott
[2017] FamCA 772
•28 September 2017
FAMILY COURT OF AUSTRALIA
| HOLGAR & STOTT AND ANOR | [2017] FamCA 772 |
| FAMILY LAW – PRACTICE & PROCEDURE – REHEARING - Scope of remitted hearing - where Full Court had previously remitted matter to different trial judge for further hearing on limited issue – where grounds of appeal did not challenge factual findings of original trial judge - whether it is open to the judge conducting the further hearing to adopt the findings of original trial judge – where the court exercised discretion and applied s69ZX(3) to adopt findings of earlier trial judge in relation to violence – where court did not adopt earlier findings in relation to the parties’ state of mind. FAMILY LAW – PRACTICE & PROCEDURE – Scope of remitted hearing – Admissibility of evidence – where maternal grandmother objects to admit affidavit of one of the father’s witnesses – where the affidavit directly contradicts one of the findings of fact of original trial judge – where discretion of court permits the affidavit and the rehearing of that issue. |
| Family Law Act 1975 (Cth) s 69ZX(3) |
| In the Marriage of Schorel (1990) FLC 92-144 Hartnett & Sampson (Scope of a Rehearing) [2009] FamCAFC 1 B & J [2009] FamCAFC 103 Carl Zeiss-Stiftung & Rayner & Keeler Limited (No2) [1967] 1 AC 853 Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29 Kopel & Ferro [2016] FamCAFC 202 Bloomberg & Rod [2010] FamCAFC 112 Holgar & Stott and Anor [2016] FamCA 632 Ferro & Kopel (No2) [2016] FamCA 1124 |
| APPLICANT: | Mr Holgar |
| FIRST RESPONDENT: | Ms B Stott (No appearance) |
| SECOND RESPONDENT: | Ms Stott |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Adey |
| FILE NUMBER: | ADC | 2199 | of | 2008 |
| DATE DELIVERED: | 28 September 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Adelaide (by video link to Cairns) |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 28, 29, 30 and 31 August 2017; 1 September 2017 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE FIRST RESPONDENT: | No appearance |
COUNSEL FOR THE SECOND RESPONDENT: | Ms Lewis |
| SOLICITORS FOR THE SECOND RESPONDENT: | Georgina Parker Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr McQuade |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Norman Waterhouse Lawyers |
Orders
The findings of Berman J in relation to the father’s history of violence (except insofar as they relate to an alleged assault on Ms I Holgar on 25 December 2012) more specifically recited at paragraph 23 of the Reasons for Judgment of Tree J delivered 28 September 2017 are adopted as findings in relation to those matters in this trial.
The father be permitted to read into evidence in the trial of these proceedings, the affidavit of Ms Y Holgar filed 22 August 2017 (subject to her being produced for cross-examination).
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 Holgar & Stott and Anor 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 CAIRNS VIA VIDEO LINK TO ADELAIDE |
FILE NUMBER: ADC2199/2008
| Mr Holgar |
Applicant
And
| Ms Stott |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 5 August 2016, for reasons then delivered, Berman J made final orders in relation to the child the subject of these proceedings, C (born in 2006 and hence presently 10 years of age) (“the child”). Pursuant to those orders, the child was to live with Ms Stott (“the maternal grandmother”) who would also have sole parental responsibility for him. The child was to spend time with Ms B Stott (“the mother”) as agreed between her and the maternal grandmother, and with Mr Holgar (“the father”) initially for six hours each alternate Saturdays, but upon the father successfully completing a course of counselling and therapy in relation to family violence, progressing to overnight time on each alternate weekend, and at Christmas.
From those orders, the maternal grandmother successfully appealed, and on 24 February 2017 (albeit for reasons published 7 August 2017) the Full Court set aside those orders of Berman J which afforded the father an opportunity to spend time with the child, and remitted “the issue relating to [the father’s] time with the child.. to the Family Court of Australia for rehearing by a Judge other than the Honourable Justice Berman.”
The appeal succeeded on a number of grounds, including that his Honour misapprehended the relevant family consultant’s evidence, failed to afford procedural fairness to the maternal grandmother in relation to the orders he made permitting the father to spend time with the child, erred in applying the unacceptable risk of harm test, and failed to adequately explain the basis for the orders which he made in relation to the father’s time. Significantly, at least as framed and determined by the Full Court, none of the grounds disposed of attacked factual findings of his Honour, nor was there any notice of contention or cross appeal filed by the father.
On 28 August 2017 I commenced upon that rehearing. Two matters have now arisen which require my determination. The first is an oral application by counsel for the maternal grandmother, to the effect that I should adopt the factual findings made by Berman J in relation to two matters. The first was in relation to matters of historical violence and family violence; the second was as to the mother’s and maternal grandmother’s state of mind as at the time of trial, and particularly that they were, and were entitled to be, fearful of, and feel threatened by, the father.
The second matter which counsel for the maternal grandmother raised was an objection to the entirety of the affidavit of one of the father’s witnesses, Ms Y Holgar. Specifically she objected to it on the basis that it sought to directly contradict one of the findings of fact made by Berman J, which related to an alleged assault by the father upon a child not the subject of these proceedings, Ms I Holgar, on 25 December 2012. Berman J had expressly rejected the father’s version of events, which was that his striking of her was in self-defence, and in any event unintentional, and accepted the evidence of Ms I Holgar that the assault was unprovoked.
It will be appreciated that the two applications are inter-related, in that both have as their foundation the submission that I should adopt factual findings of Berman J.
APPLICATION TO HAVE PARTIES BOUND BY PRIOR FINDINGS
Relevant statutory provisions and legal principles
It might be expected that, in the context of a partial remitter, the parties would remain bound by findings of fact which were not challenged and left undisturbed by the successful appeal which led to the partial remitter, but the authorities at least, in relation to family law, do not so suggest.
A convenient starting point is the decision of the Full Court in In the Marriage of Schorel (1990) FLC 92-144 where at [50] the Court said:
..Issue estoppel has at best a very limited application in family law proceedings, for reasons referred to in the above cases. Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children. The Court has a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence. Although the adults are the parties in custody in like proceedings, the real “party” is the child whose welfare is being considered. If a child in such a case was separately represented it would be difficult to envisage that the separate representative would be estopped from raising an issue such as paternity.
…Issue estoppel has a very limited application generally in family law, whether in relation to the narrower issue of paternity or in relation to other issues which may have previously been determined between the parties, as particularly the English cases referred to above amply demonstrate. It is unnecessary for present purposes to consider the outward limits of this view, except perhaps to add that where a matter has been clearly and directly put in issue in contested family law proceedings it may not be open to a party in ordinary circumstances to continue to re-litigate that same issue in subsequent proceedings.
A differently constituted Full Court returned to consider the issue of the scope of a re-hearing pursuant to a limited remitter in the case stated of Hartnett & Sampson (Scope of a Rehearing) [2009] FamCAFC 1. At [25] the Full Court said:
Thus, a trial Judge must not be constrained as to the determination of a controversy other than it must be determined according to law. For a Full Court to direct that a new trial Judge accept findings of another Judge and then apply the law would be to inappropriately shackle that Judge.
In the same year, yet another differently constituted Full Court also looked at the question of issue estoppel, in B & J [2009] FamCAFC 103, albeit not in the context of a hearing pursuant to partial remitter. In the joint judgment of May and Strictland JJ their Honours referred to Schorel (supra) with approval, and reiterated that decision’s adoption of the House of Lords decision of Carl Zeiss-Stiftung & Rayner & Keeler Limited (No2) [1967] 1 AC 853, where their Lordships said:
All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principal of issue estoppel must be applied in the circumstances of a subsequent case with this overriding consideration in mind.
Their Honours went on to say at [95]:
However, we would also emphasise that it should not be thought that every inconvenient finding of fact can be avoided in later proceedings. We can envisage cases where findings of fact from a previous trial become incontravertable – apart, perhaps, from an appeal with those findings based on the admission of further evidence on appeal.
May and Strickland JJ went on to refer to extensively to a judgment of Hale J (as her Ladyship then was) in Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29 and particularly at 39 where her Honour said:
It seems to me that the weight of Court of Appeal authorities against the existence of any strict rule of issue estoppel which is binding upon any of the parties in the children’s cases. At the same time, the Court undoubtedly has a discretion as to how the enquiry before it is to be conducted. This means that it may on occasions decline to allow a full hearing of the evidence on certain matters even if the strict rules of issue estoppel would not cover them.
…Hence, if the applicant in one set of proceedings wishes to rely on findings made in previous proceedings in order to prove a case, the Court will have to consider how this should be done. Frequently, although such findings are not necessarily accepted by the party concerned, that party would accept that a challenge to them in later proceedings will be futile. The Court may then simply rely upon the findings made earlier. Sometimes, the party concerned or some other party will wish to be made aware, not only of the findings themselves, but also the evidence upon which they were based. It is then for the Court to decide whether or not to allow any issue of fact to be tried afresh. There are no doubt many factors to be borne in mind, among them the following:
(1) The court will wish to balance the underlying considerations of public policy, (a) that there is a public interest in an end to litigation—the resources of the courts and everyone involved in these proceedings are already severely stretched and should not be employed in deciding the same matter twice unless there is good reason to do so; (b) that any delay in determining the outcome of the case is likely to be prejudicial to the welfare of the individual child; but (c) that the welfare of any child is unlikely to be served by relying upon determinations of facts which turn out to have been erroneous: and (d) the court’s discretion, like the rules of issue estoppel, as pointed out by Lord Upjohn in Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No 2) [1966] 2 All ER 536 at 573, [1967] 1 AC 853 at 947 ‘must be applied so as to work justice and not injustice’.
(2) The court may well wish to consider the importance of the previous findings in the context of the current proceedings. If they are so important that they are bound to affect the outcome one way or another, the court may be more willing to consider a rehearing than if they are of lesser or peripheral significance.
(3) Above all, the court is bound to want to consider whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial. By this I mean something more than the mere fact that different judges might on occasions reach different conclusions upon the same evidence. No doubt we would all be reluctant to allow a matter to be relitigated on that basis alone. The court will want to know: (a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way: (b) if so, whether there is any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there is any new evidence or information casting doubt upon the accuracy of the original findings.
In B & J (supra) the third judge, Thackray J gave separate reasons, although I do not read them as being inconsistent with those of May and Strickland JJ. At [165], having discussed the earlier Full Court decision in Schorel (supra), Thackray J said:
The use of the permissive “may” indicates that trial Judges have a discretion to allow matters apparently resolved in earlier proceedings to be revisited.
The subsequent Full Court decision of Kopel & Ferro [2016] FamCAFC 202, albeit focussed particularly upon whether there should or not be a partial remitter, does not suggest that there is any appetite to depart from the Court’s earlier decisions in relation to issue estoppel.
A further power relied upon by the mother is that conferred by s 69ZX(3) of the Family Law Act. That section provides:
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 the paragraphs (a)(i) to (iii).
That provision was considered in passing by the Full Court in Bloomberg & Rod [2010] FamCAFC 112, in the context of an appeal from a Judge who, at first instance, described the language of s 69ZX(3) as “permissive and unrestrained.”
The Full Court at [34] said: “His Honour considered the provision could be of particular utility in a case such as this where historical issues were mirrored in current issues before the Court. His Honour considered that the findings upon which he would place reliance were consistent with the evidence which was before him in his own assessment of the parties in their evidence.”
The provision has been further considered by Cronin J in Ferro & Kopel (No2) [2016] FamCA 1124, which was in fact the rehearing pursuant to the successful appeal in Kopel & Ferro (supra). There the respondent sought to have the undisturbed findings of fact from the primary judgment adopted in the rehearing, pursuant to s 69ZX(3).
Cronin J noted that there were 32 findings of fact which the wife sought to have adopted in the subsequent proceedings, which, at least from his Honour’s reasons, appear to have been wide ranging in nature, including as to prospective matters, such as the reintegration of the child into Israeli society.
At [29]-[30] Cronin J said:
Counsel for the Independent Children's Lawyer observed that it was simply too difficult and may indeed, extend the trial and its complexity, rather than simply hearing the matter again. There is some sense in that because, with the benefit of hindsight, cross-examination may very well be now limited when specific factual issues have been canvassed at length and found not to be controversial at all…
In my view there is some sense in what counsel for the Independent Children's Lawyer says. Trying to partition findings may complicate matters. I consider that justice might be better served by having the whole matter heard again. That way, my views will not only be not be fettered by other finding but it will also mean it will be easier to have an open mind on the whole subject.
At [14] his Honour rejected the argument that the words “any other proceedings” in s 69ZX(3) must mean proceeding other than the proceedings then on foot. At [15] he concluded:
Whilst that may have been the intention, my view is that the literal reading of the section does not permit such a conclusion. A Court could not be expected to exclude an earlier hearing in the same case when the whole purpose of the provision is to save costs, time and stress of the litigation particularly having regard to the mandatory requirements of s 69ZN(4), (6) and (7) and s 69ZQ(1).
I respectfully agree with that construction.
What did Berman J find
The conclusions in relation to matters of violence occur at many places throughout Berman J’s judgment. In the order in which they appear, the significant findings (express or implied and including relevant contextual material) are as follows:
27. The father pleaded guilty to a charge of aggravated assault involving an unrelated third party. He was imprisoned from January until August 2010.
31. On 19 April 2012, the father was further convicted of an aggravated assault involving the brother of the mother’s former partner. It was alleged that this person was assaulted by the father and then kidnapped. The father was sentenced on 28 August 2012 and received a suspended sentence.
34. The father’s circumstances were aggravated by a charge of assault in respect of Ms I Holgar on 19 June 2013. Whilst those charges were dismissed on 28 November 2013, it is in respect of that incident that forms the substance of her affidavit filed in support of the maternal grandmother.
74. The family consultant considered that the father attempted to minimise aspects of his criminal record. He was challenged in respect of a most recent conviction in 2012 for assault. The father’s response was “I admitted to a minor assault but at trial I was found totally not guilty of all charges”. The family consultant reminded the father that he had been convicted of aggravated assault. The father’s response was to allege that they were stories people had been making up about him and that in some way his criminal offending was linked to the mother.
98. She did not accept the father’s denials of his violent disposition and the inability of the father and his mother to admit the accuracy and implication of the father’s criminal history involving offences of violence could speak against the child spending significant time in the care of the father…
132. Counsel for the maternal grandmother sought to link the child’s current aggressive behaviour as a direct reflection of the father’s predisposition to violence.
153. The father is however clearly capable of violence. He admitted that he had been violent in jail but that was in order to protect himself from assault and intimidation.
154. The father’s history of offending setting out the charges, brief facts and whether there was or was not a conviction was put to him. He refused to accept the accuracy of his criminal history.
169. Whilst the father was not able to deny the periods of imprisonment, he seemed incapable of accepting that at the very least the offences for which he was charged and convicted had a common theme of violent and aggressive conduct by him. His response to the proposition that the sheer number of offences indicated a propensity to violent behaviour was dismissed by him asserting that there was more to the circumstances surrounding each of the offences than was apparent by the alleged particulars and either his plea of guilty or a subsequent conviction.
170. The father denied kidnapping anybody but could not explain how in those circumstances it was possible for there to be a conviction with the resultant term of imprisonment.
177. Counsel for the ICL strongly challenged the father in respect of the injuries his daughter sustained on 25 December 2012. The father did not deny that his daughter was taken to the hospital by ambulance having sustained a blow to the face. He denied that he had intentionally assaulted her but rather, countered that assertion by alleging that he had been assaulted, had fallen to the ground and in an attempt to protect himself, had flung his hand upwards which then connected with his daughter’s face. His rings caused the injury.
178. The father’s explanation could only be described as incredible. The injuries sustained by the child were serious and required hospital attendance.
179. I am not able to accept the father’s explanation.
186. The father did admit that he was with Mr W who was carrying a gun but that he was not. He could not explain why he would have involved himself with anyone who was carrying a firearm and he acknowledged that he had been involved in two incidents where somebody was shot.
190. The father’s trenchant denial of a propensity for violence and violent engagement must be considered against his barely restrained anger when giving evidence. He was aggressive and at times raised his voice to a frightening level. He was angered by the focus on his criminal history and violent past and became frustrated at the continued questioning of counsel.
191. The father was not an impressive witness and I consider that he did not tell the truth in respect of his criminal history and his engagement with the mother. I am satisfied that the mother and the maternal grandmother were entitled to be fearful and feel threatened by the father.
193. The issue is whether the father’s potentially volatile behaviour and his ready resort to violence would come to the fore if he was not able to control the child’s behaviour, with the added risk that the father’s aggression may be mimicked by the child, thereby creating serious difficulties for the maternal grandmother and to the mother in terms of their day to day care of the child.
214. The father’s adult daughter was called to support the allegation in her affidavit that she had been seriously assaulted by the father. When given an opportunity, he declined to cross examine her.
215. I accept the evidence of this witness.
218. The focus of the proceedings has been almost entirely centred upon the father’s violent history and in particular family violence directed to the mother. There is no suggestion that the father has been violent to the child, but so extreme has been the level of aggression by the father that it is argued the child is at significant risk of either being the focus of the father’s anger should he not be able to manage the child’s behaviour, or that the father presents as an appalling role-model to the child in circumstances where a feature of the child’s conduct is his high level of physicality with others.
257. The gravamen of the proceedings has been to consider the extent and effect of the father’s violent offending and his resort to family violence.
258. I accept, without equivocation, the evidence of the maternal grandmother that the father has engaged in violent activity and family violence directed both to the mother in particular, but to other persons as indicated by the father’s criminal history and convictions.
259. It is difficult to imagine conduct more consistent with a finding of family violence than as presented in these proceedings. It is a regrettable feature of the father’s conduct that the violence directed towards the mother was not limited to an isolated event, but rather, was a consistent pattern of behaviour and conduct over a number of years.
261. An unfortunate feature of the father’s presentation is his refusal to accept blame for his conduct and the severity and impact on others of his violence.
266. Bringing to account the father’s appalling conduct involving his adult daughter in December 2012 and the further allegation of aggressive conduct by the father to the mother of more recent date, the father appears to have modified or controlled his behaviour over the last few years. There is no further evidence of criminal offending or indeed charges having been laid.
302. The circumstances of this case require the Court to closely consider the benefit to the child of a relationship with his father and the extent to which the Court should recognise and give effect to family violence, particularly in a case where it is overt, extreme and enduring over a substantial period of time.
303. Ultimately, I have been persuaded that the father’s behaviour may well have ameliorated as evidenced by the lack of further criminal charge or allegation. There is advantage to the child spending time with the father and the paternal grandmother. There has been now significant history of the time that they spend together and there is a distinct lack of complaint that has arisen notwithstanding the current arrangements have been in place for a reasonable period of time.[1]
[1]Holgar & Stott and Anor [2016] FamCA 632
Exercise of discretion
The following factors tell in favour of adopting the findings of Berman J in relation to violence and family violence in this trial:
·It is likely that the re-litigation of those issues would be time consuming and expensive;
·Plainly the father has been jailed on one occasion as a result of being convicted of violent offences;
·The parties have not prepared for this trial on the basis that those general findings in relation to historical violence (with one exception I shall shortly discuss) were in contest;
·In relation to at least some, and likely the majority, of the father’s alleged historical violent conduct, there is no reason to think that a rehearing of the issue would result in any different findings to those of Berman J (again subject to the exception I shall discuss shortly);
·The previous findings were the result of a full hearing, in which the father was actively involved and had the opportunity, and on occasions did, test the evidence;
·The father did not challenge any of the findings of Berman J in the course of the appeal (excepting that those findings per se would not have given rise to a right of cross-appeal, but perhaps could have been crafted into a Notice of Contention);
·There is the risk that there could be inconsistent findings of fact underpinning orders which are intended to operate cohesively;
·Whilst it is true that there was no express finding by Berman J that violence informed the orders for parental responsibility, and that the child live with the maternal grandmother, implicitly that must have been the case, as his Honour required the father to satisfactorily complete counselling in relation to anger before he could even spend overnight time with the child. If I were to now find that the father had never been violent, then the justification for the “live with” order would be undermined, perhaps substantially.
On the other hand the following points are against the mother’s application:
·The welfare of the child is unlikely to be served by relying upon inaccurate determinations of fact;
·In fact, during the course of his cross-examination before me, the father has already been again challenged in relation to his acceptance of responsibility for past alleged criminal conduct (albeit in the context of demonstrating his lack of insight and questioning the reality of his asserted change).
Weighing those factors in the balance, I am generally of the view that the findings of historical violence, including family violence, by Berman J, should be adopted by me, whether in the exercise of my discretion to conduct the proceedings generally, or pursuant to s 69ZX(3). There is however one exception and that is the alleged assault on Ms I Holgar on 25 December 2012. I shall discuss that matter separately later in these reasons.
I then turn to consider whether the findings of Berman J in relation to the mother’s and maternal grandmother’s state of mind should be adopted by me.
The following factors are in favour of the maternal grandmother’s application:
·The re-litigation of those issues may take some time;
·There is no reason, on the material relied upon by the father, to seriously doubt that different conclusions would be drawn in any re-litigation of that issue;
·The findings were the result of a full hearing in which the father was actively engaged;
·The father did not seek to challenge those findings in the appeal (noting it may have required him to file a Notice of Contention).
On the other hand the following points are against the maternal grandmother’s proposal:
·The state of mind in question can only be the state of mind as at the time of the trial, which concluded on 23 March 2016. The relevant inquiry for me is the state of mind of the mother and maternal grandmother as at the time of the trial before me in 2017;
·The father is raising issues of parental alienation in these proceedings, which implicitly challenges the genuineness of the mother’s and maternal grandmother’s fear of him;
·A critical issue (it presently seems) in the trial before me, involves a confrontation between the father and mother in the course of the Family Report interviews conducted in May 2017. The father alleges that the mother was aggressive and hostile towards him; the mother and maternal grandmother assert that she was terrified of him. The resolution of that dispute is likely to be hampered if there is an accepted position that, as at March 2016, the mother was indeed terrified.
I am not satisfied that I should adopt Berman J’s findings in relation to these matters. Particularly I am not satisfied that historical findings are of much utility, given that it is the mother’s and maternal grandmother’s current state of mind which I must assess, and further, I do give weight to the difficulty in determining the question of the May 2017 confrontation in a just way, if I am constrained to accept that only a little more than a year earlier, the mother was indeed terrified of the father. To start with that as a finding of fact which binds me would, in effect, require the father to prove that the mother’s attitude had changed, rather than simply proving his version of events on the balance of probabilities.
I therefore decline to adopt the findings of Berman J in relation to the mother’s and maternal grandmother’s state of mind contained in his reasons.
THE APPLICATION TO STRIKE OUT MS Y HOLGAR’ AFFIDAVIT
The father relies upon an affidavit of his sister, Ms Y Holgar. It is very brief. It says:
In reference to the incident on 25/12/2012, [the father] was concerned that his younger child [Ms P] was smoking with his eldest child [Ms I]. When he expressed his concern, [Ms I] became defensive in her response and was yelling abusive language at her father. [Ms I] then threw a can of alcohol at [the father] hitting him in the forehead. At this [the father] stood up from the table and stepped back. [Ms I] approached [the father] and started hitting him with both hands. As this continued [the father] moved back away from [Ms I] and moved his hand outwards to prevent her from hitting him. I did not see [the father] punch [Ms I] with a closed fist. I believe [Ms I] was drinking as there were several cans of alcohol empty on the table.
I have already recited the findings of Berman J in relation to this issue. They are to wholly reject the father’s version of events – which substantially conforms with those of Ms Y Holgar – and to accept the version of Ms I.
The issue for my determination is whether I should adopt the finding of Berman J in this respect. If I do not, then there is no other basis to reject or strike out the affidavit of Ms Y Holgar.
The points in favour of adopting the findings of Berman J in relation to the incident on 25 December 2012, are as follows:
·If re-litigated, it will undoubtedly take considerable time to resolve;
·The findings of Berman J were as a result of a full hearing, in which the father was actively engaged;
·Ms Y Holgar could have been called by the father as a witness in the earlier proceedings, but was not.
On the other hand the following point in favour of permitting the issue to be re-litigated:
·The father has already been challenged in cross-examination in the trial before me in relation to that assault, and has denied that it occurred as the mother contends;
·The maternal grandmother has also been challenged in relation to her belief of the father’s version, and has given evidence (admittedly hearsay) as to what others have told her about it;
·This is the only occasion when it is said that the father has physically assaulted one of his children;
·A parent’s assault on their child, of the kind alleged, is a particularly serious matter;
·The assault was important in informing the recommendations of the family consultant, who was troubled that, if the child the subject of these proceedings were to challenge the father, given that he had responded to a challenge in the past by assaulting Ms I, predicted that he would likely assault him too;
·In these proceedings, the maternal grandmother seeks to wholly remove the father from the child’s life, which is a serious outcome.
Weighing those matters in the balance, to my mind tells in favour of permitting the re-litigation of this issue. Critical to my thinking is that the fact or otherwise of the father assaulting Ms I on 25 December 2012 is likely to weigh heavily in determining whether or not the father poses such a risk of harm to the child the subject of these proceedings, that he should be restrained from having any contact with him whatsoever. There is now a considerable body of evidence before the Court from the father and paternal grandmother which challenges the earlier finding about this incident, and Ms Y Holgar’s evidence is highly relevant. If in fact the assault did not occur as the maternal grandmother alleges, then it cannot be in the child’s best interests for decisions of the magnitude under consideration here, to be made on significant but incorrect factual findings.
I am mindful that Ms I Holgar may need to give evidence in consequence of Ms Y Holgar’ affidavit being permitted to be read. At present, the Trial Management Orders I made on 10 July 2017 would prohibit the maternal grandmother from relying upon Ms I’s affidavit, and therefore it seems appropriate that there should be an opportunity afforded to the maternal grandmother, should she so wish, to seek to bring this matter back on, for mention only, in order that orders permitting her to rely upon the affidavit of Ms I Holgar can be considered.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment. I will further direct that the matter be listed for mention only, in order that necessary procedural directions (including as to where and how Ms Y Holgar should give her evidence) can be considered.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 September 2017.
Associate:
Date: 28 September 2017
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