Kelso and Finch and Anor

[2013] FamCA 380

FAMILY COURT OF AUSTRALIA

KELSO & FINCH AND ANOR [2013] FamCA 380

FAMILY LAW – PRACTICE AND PROCEDURE – Section 69ZT(3); ruling – Evidence Act 1995 applied

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

APPLICANT: Mr Kelso

RESPONDENT: Ms Finch

INTERVENOR: Ms Kelso

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 7317 of 2011

DATE DELIVERED: 27 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Skerlj

SOLICITOR FOR THE APPLICANT: M K Steele & Giammario

THE 1^ST RESPONDENT: In person

THE 2^ND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkins

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

Orders

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

2. That all applications for final orders be adjourned for hearing before Justice Cronin as the eighth case in the list commencing on 23 July 2013 but not before 26 July 2013 at 10 am as a three day matter and that the evidence in chief of all witnesses be given by affidavit.

3. That by 4 pm on 24 April 2013 the applicant file and serve upon all other parties an amended application setting out with precision the orders to be sought.

4. That the applicant pay all setting down and trial fees by 4 pm on 24 April 2013 to the extent that the trial fees have not already been paid.

5. That by 4 pm on 17 April 2013 the 1^st respondent file and serve upon all other parties:

   (a)To the extent that she considers it necessary to do so, an amended response setting out with precision what orders are being sought;

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon.

6. That by 4 pm on 24 April 2013 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4 pm on 12 July 2013 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. That no party file any further material other than as provided by these orders without leave of the Court.

9. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

10. That pursuant to s 62G(2) of the Act, the parties and the children attend upon and at the direction of Dr B at their joint expense for the purposes of the preparation of an updated family report not to be commenced until after 9 May 2013 but to be completed and released by 5 July 2013 and although the expense is one of the applicant father and respondent mother, those fees are to be paid from the trust funds held on behalf of those parties and the ultimate determination of who is responsible for those fees shall be an issue for trial.

11. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken and to the extent that it is necessary to say so, material produced by the Department of Human Services may be provided to Dr B.

12. That all material produced under subpoenae to date is released for inspection and copying.

13. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

14. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

15. That the practitioners for the parties file and serve electronically to … by 4 pm on 19 July 2013 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of objections to evidence upon which rulings are required; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelso & Finch and Anor 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 7317 of 2011

Mr Kelso

Applicant

And

Ms Finch

1^st Respondent

And

Ms Kelso

2^nd Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is a parenting dispute involving two children M aged 5 and N aged 3. The applicant seeking orders is the father and the respondent is the mother.  They lived together in a de facto relationship.

2. It is not disputed that the children have lived predominantly with their mother and have had limited time with their father. Indeed, his current application for orders sought is what might have previously been described as contact to those children. That has now changed substantially.

3. This case began in the Federal Magistrates Court of Australia and seems to have taken a long time to get to a final hearing. The record shows that a final hearing was to have taken place in May 2012 but it was adjourned after the father’s mother intervened claiming to be owed $118,000 from what little amount the parties seemed to have had in legal and equitable interests in property.

4. Having adjourned the proceedings, the case was relisted for December 2012.

5. As the days approached for the final hearing, the mother raised allegations of sexual impropriety against the father concerning both children. There is some uncertainty in my mind about the exact sequence of events but it would appear that the mother observed sexualised behaviour and being concerned about it, attended upon a psychologist. After that visit, the mother did not tell the father either directly or through his lawyers, any of the details about her concerns relating to the behaviour of the children. She did tell the person at the contact centre but was advised that message-passing was not their function.

6. Armed with that knowledge, the mother attended upon the single expert witness who was preparing a family report but did not raise the behavioural issues nor it would seem, her concerns about that behaviour.

7. When allegations were ultimately made to the Department of Human Services, it would seem that a report was prepared for the court in which the Department raised issues of concern about the mother rather than the father. As I understand it, those issues related to psychological abuse by the mother.

8. Although these issues were raised with the Federal Magistrates Court very late in 2012, the trial was aborted and the proceeding was transferred to this court on the basis that the case would take more days than was available.

9. The response of the father was to indicate that notwithstanding his application for contact with the children, he would therefore seek that the children live with him and that is his present position.

10. The mother's position was to maintain that the children had been sexually abused and on what she portrayed in the Form 4, the abuse was dramatic and could not have been explained as anything other than sexual abuse.

11. The polarised positions of the parties, if taken to the extreme, would mean that either of these parents could be excluded completely from the lives of the children or alternatively, restricted in relation to contact in a very significant way. In relation to the mother, she being the primary attachment figure, the impact upon the children may be significant. None of that was addressed by the psychologist in the last family report and for that reason, I have ordered an update.

12. The father was represented by counsel and the mother appeared unrepresented although content, at least at this stage, to rely upon the material filed by her lawyers in the Federal Magistrates Court last December.

13. Because of the gravity of the allegations and the consequence of a finding in relation to unacceptable risk, I raised s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) and whether its application should be applied. I explained to the mother the significance of the provision and all parties otherwise agreed that the circumstances in this case were indeed exceptional and the rules of evidence should be applied.

14. The Independent Children’s Lawyer agreed.

15. In a parenting case, to apply the evidentiary rules, the Court must be satisfied that the circumstances are exceptional.

16. 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.

17. Each of these allegations is very serious and has an impact on the appropriateness of one or other of the parties as a parent. Each parent denies the allegations of the other. The court is shortly to be provided with evidence from a forensic psychiatrist, a psychosexual psychologist and of course the clinical psychologist who is doing the family report. The evidence will be vital and at least in relation to the psychiatrist and the family report writer, I have insisted that the material relied upon by the parties be examined.

18. Leaving aside the question of the allegations, the communication between the parties is almost non-existent giving rise to the question of whether or not equal shared parental responsibility could work. If findings were made that the events occurred as described by either parent, the presumption of equal shared parental responsibility could also be rebutted. That may mean that the pathway of determination of the parenting issues affecting these children could be very different from what they currently experience.

19. The current parenting arrangements permit limited time between the father and the children. That may change radically.

20. 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.

21. 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. In a serious case such as this, particularly where there is a dispute about violence which it seems is not independently corroborated, the rules of evidence provide a framework so that there is less doubt about what should be received and what should not.

22. Section 69ZT also permits the Court to give directions in respect of evidence so that to the extent that this ruling might be seen as restrictive, there is always the capacity of a party to apply to admit further evidence if it can be shown to be relevant.

23. For those reasons and because of the consensus of the parties, in accordance with s 69ZT(3) of the Act, the provisions of the Evidence Act1995 (Cth) shall apply.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 March 2013.

Associate: 

Date:  22 April 2013