Khalil and Tahir-Ahmadi

[2010] FamCA 1080

FAMILY COURT OF AUSTRALIA

KHALIL & TAHIR-AHMADI [2010] FamCA 1080

FAMILY LAW – EVIDENCE – parenting issues – whether section 69ZT(3) should be applied in the trial proceedings – whether exceptional circumstances exist – consideration of the principles contained in section 69ZN – where the Court was not satisfied that exceptional circumstances existed – held that it was inappropriate to apply the provisions of section 69ZT(3)

Family Law Act 1975 (Cth) ss 69ZN & 69ZT

Baker v The Queen [2004] HCA 45
Emmett & Emmett (No. 2) [2010] FamCA 57
Johnson & Page (2007) FLC 93-344
R v Kelly (Edward) [2000] QB 198
Segur & Segur [2010] FamCA 556
State Central Authority & Ustinov (No. 4) [2008] FamCA 987

APPLICANT: Mr Khalil

RESPONDENT: Ms Tahir-Ahmadi

INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

FILE NUMBER: ADC 4408 of 2009

DATE DELIVERED: 16 November 2010

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 16 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mellows

SOLICITOR FOR THE APPLICANT: Legal Services Commission of SA

COUNSEL FOR THE RESPONDENT: Ms Dibden

SOLICITOR FOR THE RESPONDENT: McDonald Steed McGrath Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pickhaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Barr Lawyers

Orders

1. At this stage I do not propose to make any blanket order which requires the facts to be established with the evidence required in accordance with the Evidence Act but will proceed to hear the matter pursuant to the provisions of section 69ZT(1).

2. Leave is given to the wife to issue a subpoena to the local Community Health Service to produce documents in relation to the wife, husband and the child PROVIDED THAT it is issued by 4.00 pm on Tuesday 16 November 2010 and made returnable at 9.15 am on Thursday 18 November 2010 before me.

IT IS NOTED that publication of this judgment under the pseudonym Khalil & Tahir-Ahmadi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4408 of 2009

MR KHALIL

Applicant

And

MS TAHIR-AHMADI

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a preliminary issue that needs to be determined at the commencement of this final hearing of the matter.  The proceedings between the parties, in relation to the welfare of the child, commenced in December 2006.  There was subsequently a trial in the Federal Magistrates Court of Australia.  A decision was made.  The matter went on appeal.  The appeal was heard by the Full Court, the Appeal Division of the Family Court of Australia, and was successful.  The matter was then referred back to the Federal Magistrates Court of Australia for rehearing.  Subsequently, it was then transferred to this Court.  Preparations have been made to list the conclusion of the matter for trial.  The trial commenced before me yesterday.

2. There were already a large number of documents on the Federal Magistrates Court file, and another number of documents on the Family Court of Australia file. 

3. When the matter was commencing before me yesterday, I raised the issue of section 69ZT(3), so far as it related to submissions by the Independent Children's Lawyer’s counsel and the father’s counsel, that certain matters in the affidavits which were being relied upon by other parties should be deleted because they offended against the rules of evidence, particularly in relation to matters which were described as hearsay or opinion.

4. I then heard argument from the counsel as to the application of section 69ZT. 

5. It is now the case that counsel for the father maintains that the exception made out in section 69ZT(3) should be applied, and that the rules of evidence, so far as they relate to hearsay and opinion, should be applied in this case.  He is supported in that by counsel for the Independent Children's Lawyer, but it is opposed by counsel for the mother.

6. The determination of the matter depends on whether the principles set out in section 69ZT (and the exception in section 69ZT(3)) should apply to this matter.  Section 69ZT was included in the Act in the 2006 amendments.  Subsection (1) provides:

   “These provisions of the Evidence Act 1995 do not apply to child related proceedings.”

   It then lists several parts and sections of the Evidence Act.  But, in particular reference to this matter, subsection (c) provides that:

   “Parts 3.2 to 3.8, which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character do not apply to child related proceedings.”

   These proceedings before the Family Court are clearly within the definition of child related proceedings.

7. The provisions of section 69ZT continue in subsection (2) to say:

   “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).”

8. However, subsection (3) provides that:

   “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, the importance of the evidence in the proceedings and the nature of the subject matter of the proceedings, and the probative value of the evidence, and the powers of the Court to adjourn the hearing to make another order or give directions in relation to evidence.”

9. Subsection (4) allows the Court, if it decides to apply a division or part of the Evidence Act mentioned in subsection (1), to give such weight, if any, as it thinks, to evidence admitted as a consequence of the provision applying.

10. The complicated provisions of section 69ZT(3) require the Court to be satisfied that the circumstances in this case are exceptional. 

11. Subsection (3) refers to the Court deciding one or more of the provisions of a division or part mentioned in that subsection, can be applied to an issue in the proceedings on the basis that the Court is satisfied that the circumstances are exceptional.  There is no clear or concise connection between reference to “an issue” in the proceedings and the “circumstances” which are required to be exceptional.

12. There has been some decisions of this Court in relation to the interpretation of section 69ZT(3), but they appear to be limited to judges at first instance.  The passing reference in Johnson & Page (2007) FLC 93-344, a decision of the Full Court of 2007, referred to it being likely that exceptional circumstances could be found to exist if there was a case in which the Court was being asked to make a positive finding of sexual abuse of a child.

13. I have also been referred to the decision of Bennett J in the matter of Segur & Segur [2010] FamCA 556. I have referred counsel to the decision of mine in State Central Authority & Ustinov (No. 4) [2008] FamCA 987 and a decision of Watts J in the matter of Emmett & Emmett (No. 2) [2010] FamCA 57. Those cases quote Callinan J in the decision of Baker v The Queen [2004] HCA 45 a High Court of Australia case, in which his Honour referred with approval to Lord Bingham of Cornhill CJ in the case of R v Kelly (Edward) [2000] QB 198 where at page 208 his Honour said:

    “We must construe ‘exceptional' as an ordinary familiar English adjective and not as a term of art.  It describes a circumstance which is such as to form an exception which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional, a circumstance need not be unique or unprecedented, or very rare, but it cannot be one that is regularly, or routinely, or normally encountered.”

14. I rely on the cases which have referred to that definition, or explanation, as to how one should treat the word “exceptional”.  It is important to consider the legislation and the requirements of section 69ZT in the context of the circumstances before this Court. 

15. I have taken into account, as I am required to do, the provisions of section 69ZN of the Family Law Act, which makes it clear that the Court must give effect to the principles in performing duties and exercising powers in relation to child related proceedings, and in making other decisions about the conduct of child related proceedings. “Must” is a clear requirement that something must be done and is not discretionary. The principles enunciated in section 69ZN include that the first principle is to consider the needs of the child and the impact that the conduct of the proceedings may have on the child.

16. There is also a second principle which says that the Court is to actively direct, control and manage the conduct of the proceedings. 

17. The third principle, clearly of relevance in this matter, is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect, and the parties to the proceedings against family violence.

18. The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will prompt cooperative and child focused parenting by the parties.  Whilst I take a note of that principle, these proceedings thus far do not suggest there has been, or will be, cooperative and child focused parenting by the parties. 

19. The fifth principle is of some significance; that the proceedings are to be conducted without undue delay, and with as little formality and legal technicality and form as possible. I underline and emphasise the words “with as little formality and legal technicality as possible”. I am required by section 69ZN to give effect to those principles when conducting the matter and considering the admission of evidence and the application of the principles of section 69ZT.

20. This is not a case where I am being asked to make a positive finding of sexual abuse.  It is a case which has some unusual features relating to the immigration and foreign law issues.  But the significant factors to be determined relate to issues concerning family violence and allegations in relation to the parenting capacities of each of the parents, and the possible psychological harm from inappropriate parental influence.  Issues such as family violence and capacity of parents to provide a proper upbringing for the child and the attitude to the relationship with another parent are not issues which are unusual or exceptional in Family Court of Australia proceedings. 

21. The circumstances of this matter are ones which primarily surround the question of family violence, and the issues in relation to section 60CC, so far as they relate to the attitude to parenting and the child, the capacity to parent and the willingness to encourage a relationship with the other parent.  Those matters are the matters which relate to the issues in the proceedings which require the consideration of section 69ZT(3). 

22. I am not satisfied that the circumstances surrounding these issues are exceptional.  It is clear that in this Court, the Family Court of Australia, the cases which come before the Court are now very regularly cases involving allegations of family violence, psychological harm and inability or unwillingness to encourage a relationship between the child and the other parent. 

23. The Court therefore is unable to say that the unusual features of the case, so far as they relate to the issue of immigration or foreign law, are sufficient to bring into effect the provisions of section 69ZT(3).  Therefore, I am not satisfied that the circumstances are exceptional. 

24. I do take into account the importance of some of the evidence, so far as it relates to various issues, and the nature of the subject matter, but I also take into account the provisions of subsection 69ZT(2), which gives the Court a discretion to give such weight, if any, as it thinks fit, to evidence admitted as a consequence of the provisions of the Evidence Act not applying.

25. To that extent, therefore, evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in the appropriate context and given the appropriate weight, depending upon who is expressing the opinion and on what basis, and the establishment of the necessary background facts.

26. I am therefore, at this stage, not proposing to make any blanket order which requires the facts to be established with evidence required in accordance with the Evidence Act, but will proceed to hear the matter pursuant to the provisions of section 69ZT(1).  I also do that on the basis that this matter has been before the Federal Magistrates Court and the Family Court now for a period of years, and the papers have been prepared and placed on the Court file since the introduction of section 69ZT.  The evidence was prepared for this trial.  It can be assumed that it was prepared on the basis that section 69ZT(1) applied.  I would not find that this is a matter in which the circumstances are exceptional within the definition of section 69ZT(3).

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 16 November 2010.

Associate: 

Date:  26 November 2010