HUSSON & TUENDER

[2013] FamCA 127

FAMILY COURT OF AUSTRALIA

HUSSON & TUENDER [2013] FamCA 127

FAMILY LAW – EVIDENCE – Question as to whether pursuant to s 69ZT(3) of the Family Law Act 1975 the Rules of Evidence apply

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

APPLICANT: Mr Husson

RESPONDENT: Ms Tuender

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 3639 of 2011

DATE DELIVERED: 4 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 26 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dillon

SOLICITOR FOR THE APPLICANT: A K Reeves & Associates

COUNSEL FOR THE RESPONDENT: Mr Stratton-Smith

SOLICITOR FOR THE RESPONDENT: Legal Services Commission

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Barr

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

IT IS ORDERED THAT

1. The provisions of the Evidence Act 1995 (Cth) be applied to the proceedings in accordance with s. 69ZT(3) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Husson & Tuender 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: ADC 3639  of 2011

Mr Husson

Applicant

And

Ms Tuender

Respondent

REASONS FOR JUDGMENT  

1. This matter was listed before me in anticipation of a final hearing in late July 2013.

2. These proceedings commenced in the Federal Magistrates Court. The matter was first listed for hearing in the Magellan List in this Court on 17 January 2012.  The father and mother were married in May 2002 and separated after what is alleged was a long history of separations and reconciliations and allegations of family violence. They were divorced in 2009. The mother has two children of a previous marriage who are now both over 18 years of age. The child the subject of these proceedings is now 7 years of age. She lives with the mother and has always done so having what is alleged to be sporadic contact with the father. It is common ground that she has not seen the father since May 2011. The child was only 5 when she last spent time with the father and very young when her parents separated.

3. The mother alleges that the father has physically and sexually abused the child and there have been numerous notifications to Families SA including notifications with respect to the child’s sexualised behaviour and disclosures to the mother of sexual touching by the father after the mother allowed the father into her home following separation. It was further reported that when the father was confronted by the mother in relation to these allegations that he returned to the mother’s home kicked the child, called her a “bitch”, slapped the mother and instructed the child not to say anything.

4. Child Protection Services became involved with the child following these allegations and in the CPS report dated 29 December 2011 it is reported that the child’s account was “sufficiently detailed and consistent” to raise concerns about her safety in the care of her father and that it was “…considered that both the alleged incidences of sexual and physical abuse cannot be ruled out as having occurred.” CPS concluded that any contact the child “…has with her father needs to be supervised to ensure her physical and psychological safety.” The family report writer’s belief that there is a “heightened risk of future emotional harm” to the child from the father in the context of the allegations of both physical and sexual abuse.

5. The father seeks orders for equal shared parental responsibility. Although he concedes that the child should live with the mother he seeks orders that initially the child spend time with him at a contact centre and thereafter although he does not say when this should occur each alternate weekend from Friday until Sunday and for half the school holidays. It is his case that it is not necessary for him to commence his time with the child at a contact centre but that he is prepared to do so in order to assuage the mother’s concerns.

6. The mother, on the other hand, seeks an order for sole parental responsibility. It is her case that it is not in the child’s best interests to spend time with the father.

7. During the hearing I raised with Counsel for the father, Counsel for the mother and Counsel for the Independent Children’s Lawyer the question of whether s69ZT(1) should apply or whether the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s69ZT(1).

8. In order to apply all or any of the provisions of the Evidence Act which by virtue of s69ZT(1) do not apply the Court must be satisfied that the circumstances are “exceptional” and in determining whether the circumstances are “exceptional” must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order to give a direction in relation to the evidence and any other matters the Court considers relevant. It was submitted on behalf of the father that this is a serious matter and that the rules of evidence should apply. Both Counsel for the mother and Counsel for the ICL submitted that whilst the issues in this case are serious that the circumstances in this case are not “exceptional” and therefore the rules of evidence should not apply.

9. Whilst the fact that this case is in the Magellan List is not itself an exceptional circumstance and does not determine whether or not the rules of evidence should apply. However the outcome of this case has serious consequences for the child and the parents in this case whether it is because of the risk of emotional harm to the child in the event that she is to spend time with the father or because she may be precluded from having any relationship with him. This is of particular significance given the vulnerability of the child in this case.

10. The evidence, in particular in relation to the allegations of sexual abuse and family violence, is important evidence for the purposes of determining what is in this child’s best interests.  The mother in this case alleges that the child has disclosed to her that she has been sexually abused and there will no doubt be cross-examination in relation to those alleged disclosures. The child has made similar disclosures to Child Protection Services and the family report writer. The mother also seeks to rely upon the evidence of her two adult children as to the father’s behaviour towards them and their observations of his behaviour towards the mother and the child in this case.

11. Although the case does not just rest on the mother’s evidence of the child’s disclosures and the history of the relationship, it is the father’s case that these allegations are fabricated and that the child has been influenced by the mother and her adult children. If that were the case it is also possible that the child’s disclosures to Child Protection Services and the family report writer might be similarly influenced by the mother and her two adult children or at the very least that their evidence based upon the allegations made by the mother and her two adult children might not be safe.

12. In all of the circumstances I am satisfied that the circumstances are “exceptional” and propose to apply the rules of evidence in this case.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 4 March 2013

Associate: 

Date:  4 March 2013