Hope and Kingston

[2012] FamCA 1020

FAMILY COURT OF AUSTRALIA

HOPE & KINGSTON [2012] FamCA 1020

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence Act 1995 (Cth) to apply

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Hope

RESPONDENT: Ms Kingston

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 12980 of 2007

DATE DELIVERED: 6 December 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 3 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE RESPONDENT: Altavilla Vessali

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

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

Orders

1. That in accordance with s 69ZT(3) of the Family Law Act 1975 (Cth), the provisions of the Evidence Act 1995 (Cth) shall apply to these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hope & Kingston 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 12980  of 2007

Mr Hope

Applicant

And

Ms Kingston

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 3 December 2012, I set this matter down for final hearing in April and directed the parties to file their affidavits of evidence in chief. The question arose in discussion whether I should apply s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) and require the parties to ensure that the evidence complies with the Evidence Act 1995 (Cth).

2. This parenting dispute has a number of contentious issues in it all of which were discussed in the directions hearing before me. It is common ground that each parent seeks to have a greater responsibility for their child than the other parent in future. That is not unusual but where orders are sought to severely curtail and restrict the other parent’s role in their child’s life, it is unusual and contrary to the spirit if not the letter of Part VII of the Act as to the role of parents in the lives of their children. When the Court is asked to intervene and depart from those legislative aspirations, the orders focus on the best interests of the child.

3. In the discussion, about the application of s 69ZT of the Act, the parties adopted different positions. The mother and Independent Children’s Lawyer supported the order but the father opposed it.

4. In my view, this is a case where the order should be made.

5. The Court must be first satisfied that the circumstances are exceptional.

6. Section 69ZT requires a number of matters to be taken into account which include the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence and the powers of the court to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

7. The allegations here involve a kindergarten aged child. There is no trust between the parties and suspicion runs high. The parties have each a share of their child’s time at the moment but such is the state of their relationship that the handover has to occur at a police station. The mother’s relationship with a contact centre was said not to be good. There is a history of disputes resulting in family violence orders. The parties strongly disputed at which school their son should begin his education next year and that required the Court to intervene and make a determination.

8. The Senior Registrar made orders removing supervision of the mother’s time with the child and on the same day, an expert provided a report to the parties indicating his concern about the wife’s behaviour such that questions were raised as to whether the supervision should be brought back.

9. An incident in which the child ended up with a broken arm may focus on the appropriateness of one or other of the parents. That incident required involvement of a number of medical experts. There have been a number of those expert witnesses involved in this case and their opinions will be important. As such, it will be important to ensure that those opinions are underpinned by accepted or proved facts.

10. The Department of Human Services has been involved with the case. That in itself raises concerns about the welfare of the child.

11. Allegations were made about the child being sexually abused and although the case has taken a different turn in recent weeks, those allegations are still alive.

12. It would seem that there are at least three issues (and there may be more) for the Court to determine. They are whether there is an unacceptable risk of abuse, what did happen to the child to cause the broken arm and is the mother’s behaviour which is said to be infantalising of concern in her role of caring for her son?

13. Depending upon the findings, the presumption of equal shared parental responsibility could be rebutted. That may mean that the pathway of determining the various parental responsibilities could be different.

14. The seriousness of the proposals of the parties and the nature of the proposed evidence to be tested and relied upon is a good indication that this is not the sort of “usual” case heard in this Court. In my view, it is exceptional.

15. Section 69ZT also contemplates the Court examining the probative value of the evidence. There is sometimes a fine line between what is relevant and what is not and hence what is admissible. This is a serious case where the Court will be asked to make findings about the truthfulness of the parties. The rules of evidence provide a framework so that there is less doubt about what should be received and what should not for that purpose.

16. Section 69ZT also permits the Court to give directions in respect of evidence so there is always the capacity of a party to apply to admit further evidence if it can be shown to be relevant.

17. For those reasons, in accordance with s 69ZT(3) of the Act, the provisions of the Evidence Act1995 (Cth) shall apply.

I certify that the preceding Seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 December 2012.

Associate: 

Date:  6 December 2012