Khalid & Khalid (No 2)

[2019] FamCA 1047

FAMILY COURT OF AUSTRALIA

KHALID & KHALID (NO. 2) [2019] FamCA 1047

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – Where leave is sought by the father to call evidence from his sister to verify evidence set out in his own Affidavit – Where directions where made that each party file and serve an Affidavit of each witness that they intend to rely upon prior to the hearing – Where the Court finds that it would be unfairly prejudicial to the mother for leave to be granted – Application dismissed.

Family Law Act 1975 (Cth) ss 69ZT, 69ZV.

APPLICANT: Mr Khalid

RESPONDENT: Ms Khalid

INDEPENDENT CHILDREN’S LAWYER: Barker & Barker

FILE NUMBER: CAC 128 of 2014

DATE DELIVERED: 30 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: McClelland DCJ

HEARING DATE: 30 August 2019

REPRESENTATION

THE APPLICANT IN PERSON: Mr Khalid

COUNSEL FOR THE RESPONDENT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: Infinity Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWER Mr Ridge

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalid & Khalid 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 CANBERRA

FILE NUMBER: CAC 128 of 2014

MR KHALID

Applicant

And

MS KHALID

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This decision concerns an Application by Mr Khalid (“the father”) to call further evidence from his sister, with a view to that evidence lending support to contentions that he has set out in his own Affidavit. That Application is made in circumstances where counsel for the mother has withdrawn a foreshadowed objection to the father’s evidence on the basis that it was hearsay.

2. In broad outline, the father has indicated that the additional evidence he proposes to call from his sister, Ms LL, would relate to alleged incidents of physical abuse by Ms Khalid (“the mother”).

3. Specifically, the father contends that the evidence he proposes to call from his sister, Ms LL, would relate to the matters set out in paragraphs 17, 23, 24, 75 and 76 of his Affidavit filed 15 July 2019, set out as follows:

   17. There was an interim order in 2014, where D was living with me full time and the applicant had supervised care for D for 3 hours, 2 days after school each week. On 2 December 2014, my sister Ms LL, was my nominated supervisor. The applicant assaulted her by pushing my sister with her car to a concrete post in a car park in Suburb J. My sister sustained injuries and had to attend the hospital on the that night and had to go through several therapies. Ms LL was a PhD student at that time and just completed her PhD.

   23. On 24 September 2015, my sister picked up D for Religious celebrations and found that D has several injuries on her face. She asked her about the injuries, she told that the applicant hit her with sandals and scratched her face. She also told my sister that her mother beats both her and her brother with sandals a lot and sometimes her brother even bleeds. Please see Exhibit D.

   24. Please see Exhibit E, email from my sister explaining what happened.

   75. In the meantime, I had a call from the applicant's Sister-in-law and she confirmed the above story. She also confirmed that she left the house of her deceased husband, where now applicant's parents live and never went back.

   76. As this abuse was a confirmed abuse, this raises question about violence on D, C and Ms MM's 2 children as this abuse happened in front of them.

4. The father also contends that the evidence he proposes to call from his sister, Ms LL, will go to annexure D and E of his tender bundle (marked “Exhibit 2F” in the proceedings). Annexure D is a photograph of a child’s chin that purports to show some injury. It is accepted that the child is D born in 2009. D is the child who is the subject of these proceedings. Annexure E is an undated email from Ms LL in which it is stated: 

   I remember when D came the red part beside her eyes looked worse. But because I preferred to have lunch outside with her so I didn't take pictures immediately.

   By the evening after we spent a whole day outside having fun at the park she told me her biological mother hit her with sandals and scratched the face. She also told me that her mother beats both her and her brother with sandals pretty much a lot and sometimes her brother even bleeds.

   I really felt bad for her. Hope she doesn't get beaten anymore.

   Ms LL, From mobile.

5. As noted, the Application is made in circumstances where counsel for the mother indicated that the mother is not pressing an Application for those paragraphs and annexures to be exempted from the application of s 69ZT of the Family Law Act 1975 (Cth) (“the Act”). By way of summary, for the purpose of these proceedings, s 69ZT of the Act provides that certain aspects of the Evidence Act1995 (Cth) will not apply, including the application of the rule against the admissibility of hearsay evidence. The section relevantly provides that:

   (1)  These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:

   (a)  Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;

   (b)  Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);

   (c)  Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

   (2)  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).

   (3)  Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:

   (a)  the court is satisfied that the circumstances are exceptional; and

   (b)  the court has taken into account (in addition to any other matters the court thinks relevant):

   (i)  the importance of the evidence in the proceedings; and

   (ii)  the nature of the subject matter of the proceedings; and

   (iii)  the probative value of the evidence; and

   (iv)  the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

   (4)  If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

   (5)  Subsection (1) does not revive the operation of:

   (a)  a rule of common law; or

   (b)  a law of a State or a Territory;

   that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.

6. In other words, the Application, as originally foreshadowed by the mother’s counsel, may have resulted in those relevant paragraphs from the father’s Affidavit being excluded from evidence in these proceedings as they are hearsay. This similarly would have applied to the annexures to the father’s Affidavit to which I have referred. As a result of the mother withdrawing that Application, I have indicated that I will read each of those paragraphs of the father’s Affidavit, as set out above, and have regard to each of those annexures. In so doing, I will consider the weight that can be attached to that evidence in accordance with s 69ZT(2) of the Act which I have set out above.

7. Further, in addition to s 69ZT of the Act, it is relevant that s 69ZV of the Act would otherwise make evidence of children, which is in the form of hearsay, admissible. Again, subject to weight, I would have regard to that evidence.

8. In addition, the father has stated that Ms LL could give greater clarity about a matter where he contends, in paragraph 17 of his Affidavit, that the mother pushed his sister with a car into a concrete post in a car park.  The father stated that he would also call evidence as to how abusive, as he contends, the mother has been and also to present evidence of videos that have been provided in previous proceedings.

9. Counsel for the Independent Children’s Lawyer also opposes leave being given to call Ms LL at this stage of the proceedings. The Independent Children’s Lawyer contends that an additional consideration, in not acceding to the father’s request to call evidence from his sister, is the fact that the evidence sought to be relied upon by the father, in respect to the incident which occurred on 2 December 2014, has been the subject of consideration in earlier proceedings. Those were the proceedings between the parties before Judge Neville, which gave rise to his judgement dated 15 June 2015.I respectfully agree that is also a relevant consideration in rejecting the request made by the father to call the additional evidence from his sister.

10. Of greatest relevance to my decision to reject the father’s Application, however, is the fact that the Application is made at a point in time where the mother is now in the third day of cross-examination. I place on record my observations of the mother who, in the design of this building, is placed in close proximity to the judicial bench. She has been visibly distressed during the course of the proceedings. The mother has expressed that distress on several occasions.

11. The cross-examination has traversed areas which frankly, in some instances, have not been relevant to the proceedings. In other instances, the cross-examination has been of marginal relevance and has absorbed a considerable amount of time. This is relevant because I am obliged to have regard to the impact of the Court process on all litigants, including both financial cost and emotional cost. 

12. The evidence which the husband foreshadows calling from his sister is evidence that he has had every opportunity to present in circumstances where, according to Orders made by Gill J on 15 April 2019, the parties were clearly on notice of the time in which they were required to file their evidence.

13. Orders 6, 7 and 8 made by Gill J on 15 April 2019,  are as follows:

    6. The Mother is to file and serve a single consolidated affidavit from each witness she relies upon by 4pm on 1 July 2019.

    7. The Father is to file a single consolidated affidavit from himself and each witness he intends to rely upon by 4pm on 15 July 2019.

    8. No party may rely on affidavit material other than as filed in accordance with these directions without the further leave of the Court.

14. I am satisfied that permitting the father to call additional evidence from Ms LL, at this point in time, would be unfairly prejudicial to the mother and not justified in circumstances where the mother has concluded her evidence in chief and the father’s cross examination of her is all but concluded.. In other words, it is inappropriate to, at this point of the proceedings, allow the father to supplement evidence which the father has had every opportunity of presenting in compliance with the trial directions made by Gill J.

15. Accordingly, I decline the father’s Application for leave to call additional evidence from his sister, to supplement the evidence that he has already set out in his trial Affidavit and attached as annexures to that Affidavit.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 30 August 2019.

Associate: 

Date:  27 February 2020