MAIER & MAIER

[2018] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAIER & MAIER [2018] FCCA 281

Catchwords:
FAMILY LAW – Parenting – interim decision – three children aged 13, 11 and 7 – allegation of sexual abuse of the children in the proceedings – late notice of application for adjournment of trial dates – current JIRT investigation – application for adjournment granted – transfer of proceedings to the Family Court of Australia – costs reserved.

Legislation:

Family Law Act 1975 (Cth), Pt VII

Cases cited:

Marvel & Marvel [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13

Applicant: MR MAIER

Respondent: MS MAIER

File Number: NCC 1083 of 2017

Judgment of: Judge Middleton

Hearing date: 29 January 2018

Date of Last Submission: 29 January 2018

Delivered at: Newcastle

Delivered on: 29 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Duane

Solicitors for the Applicant: Kim Monnox & Associates Solicitors

Counsel for the Respondent: Mr Bithrey

Solicitors for the Respondent: Powe & White Family Lawyers

ORDERS

1. Subpoena 18, 28, 29 and 30 are released for inspection by the legal representatives and parties in the proceedings.

2. Pursuant to Rule 8.02 of the Federal Circuit Court Rules the proceedings are transferred to the Family Court of Australia in Newcastle.

3. The children [X] born (omitted) 2004, [Y] born (omitted) 2010 and [Z] born (omitted) 2006 (“the children”) are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.

4. Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.

5. Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.

6. The Applicant Father’s costs of today are reserved.

7. A transcript of the reasons for judgment today be provided and placed on the file.

THE COURT NOTES THAT:

A.Numerous allegations raised by the Mother relating to the Father’s character.

B.Allegations of the Mother about extended paternal family members being involved in sexual abuse of children.

C.The non-disclosure of the children at previous interviews.

D.The subsequent alleged disclosure on 3 December 2017 following Family Report interviews.

E.The ongoing JIRT enquiry.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1083 of 2017

MR MAIER

Applicant

And

MS MAIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am asked to determine an Application in a Case which was filed on 24 January 2018. That application is made by the Respondent Mother wherein she seeks an adjournment of this trial together with further orders if the adjournment is granted. 

2. The Respondent relies upon her Application in a Case filed 24 January 2018, her affidavit filed 24 January 2018 and an Application for Review dated 24 January 2018.

Background

1. The parties were married in 2001. They separated in 2014. 

2. Proceedings were commenced by the Father on 12 April 2017.  The Mother filed her Response on 3 July 2017. 

3. The property aspect of this matter has been finalised.

4. What remains on foot is the children’s proceedings relating to three children: [X] (known as [X]) aged 13; [Z] (known as [Z]), aged 11; and [Y], (sometimes known as [Y]), aged 7.

The allegations

1. The mother has alleged that the father was involved in a murder or attempted murder. She says she found police documents and other legal documents in 2002 relating to this, but that she “destroyed the information, wanting to believe he had changed.”

2. The mother alleges that the father sexually assaulted her on many occasions, including most nights throughout the marriage, from a “very early stage after Mr Maier and I married”.

3. The mother has alleged that the father has a chronic alcohol abuse issue dating back to 2006. 

4. The mother makes allegations that the father’s grandfather and his stepfather have sexually abused children from 2010.

5. The mother alleges that from 2010 the father would take the girls into the shower.  In April 2012 the mother alleges that she witnessed the father repeatedly touching [Z]’s vagina and that the father “appeared to be obtaining some form of sexual gratification from it.”

6. The mother did nothing about this other than tell the father to stop. 

7. The mother says this occurred on a variety of occasions.  In mid-2013, the mother alleges [Z] showed the mother her vagina and the mother noticed it was bleeding and “appeared to have lacerations”.  The mother showed this to her mother later that day, neither of whom reported the matter to police.

8. It is alleged that [Y], in 2015, told the mother:

   “I am glad daddy has gone, because now I do not have to shower with him.  He really hurts me when he rubs my tooshie.”

9. On 24 July 2017 I ordered a Family Report and listed the matter for trial to start today.

10. Interviews were conducted by the Family Consultant, Mr P, on 19 October 2017.  He reports that [X] was

    “…clear to say that she was never uncomfortable about her father.”

11. [Z] clearly told the Family Consultant that she has never felt unsafe with her father, and she went on to say “her father has never harmed her”.   [Y] was “clear to say that her father never harmed her” and she was adamant that she was never scared of her father. That is, of course, all untested evidence. 

12. Not surprisingly, perhaps, the mother is unhappy with the process of the Family Consultant’s interviews, saying that in light of the allegations she has made. She lists her difficulty with the process at paragraphs 88 to 102 of her Affidavit filed 22 December 2017.

13. The mother alleges that since the interviews, [Y] will wet the bed every second night, sleepwalks and experiences night terrors; [Z] has become more withdrawn and her “aggression towards [Y]” has returned; and [X] continues to have her earlier issues. 

14. The mother alleges that on 3 December 2017 [Y] said she was scared of her dad because of “what he used to do to me in the shower” and then proceeded to rub her vagina “as though she was imitating what her father had done to her.”

15. The mother made a report. The mother was unhappy with the interview process involving [Y] on 31 December 2017. The mother complained about the process, and the file is now with JIRT. [Z] has been interviewed on 12 January 2018 and made no disclosures.  [Y] is yet to be interviewed.  There is an ongoing JIRT enquiry.

The application

1. The Applicant relies on three bases for the adjournment.

2. The first reason is the late filing of material of Dr R and Ms C. Dr R’s Affidavit was filed on 16 January 2018.  He is a doctor.  He gives some evidence about alcohol use.  Ms C is the sister of the Applicant and her affidavit was filed on 8 January 2018. 

3. The second reason is that the Respondent is prejudiced because she could not subpoena relevant documents because the registry refused.

4. The third reason is that there is an ongoing JIRT enquiry.

5. If I adjourn matters on the basis that material is filed out of time, this Court would grind to a halt. It happens on a daily basis. The information from Dr R is information relating to alcohol abuse.  The mother alleges that the father is a chronic alcoholic, and as a result the children should not be in his care.  It is up to her to prove that allegation. 

6. Perhaps not surprisingly, having regard to the number of allegations made against the father, he chose to bring some evidence that might satisfy the Court that he does not have an alcohol issue. There is nothing surprising about the alcohol issue for the Respondent and no prejudice follows.

7. The information from the sister in the form of an Affidavit was filed almost three weeks ago.  This provided plenty of opportunity for competent counsel and solicitors to consider that information and consider whether that witness is required for cross-examination. 

8. On the basis of the material being filed out of time, I can see no basis for an adjournment. 

9. The mother is potentially prejudiced due to being prohibited from obtaining relevant subpoena.  The extent of that prejudice is not known because we do not know what the subpoena would reveal.  That prejudice has to be weighed against the prejudice to the father and the children, of having the matter finalised and also against the extraordinary waste of court time.

10. There is an ongoing JIRT enquiry.  Whilst the timing of the alleged disclosures, having regard to the history I have outlined, is suspicious there is equally empirical research that shows that disclosures can often be delayed and they are not necessarily made the first few times an enquiry is made of the alleged victim.

11. It is well known that JIRT consists of highly trained individuals.  Their interviews are conducted in a child-focused way.  What comes of those interviews is given substantial weight in this Court, the Family Court and in the criminal courts in the state. 

12. The investigation needs to be finalised.  To push on in light of an open, ongoing investigation would lead to ongoing litigation and, as counsel for the Applicant quite rightly points out, during that process if JIRT deem it necessary this Court process can be interfered with. I do not believe that is in the best interests of these children for that to happen.

13. In my view, the findings of the JIRT team will be important for these girls. The Court must act cautiously in light of my paramount consideration pursuant to the Act.[1] The potential risk must be given significant weight; the balance of those competing matters favours an adjournment.

    [1] Family Law Act 1975 (Cth) s 60CC(2)(a) and (b); SS & AH [2010] FamCAFC 13; Marvel & Marvel [2010] FamCAFC 101.

14. I am of the view that the matter needs to be transferred to the Family Court of Australia. It falls within the Magellan protocol. There is a recent disclosure noting that it concerns historical matters, and there is an ongoing JIRT enquiry. 

15. The matter is likely to take longer than four days, noting the addition of two extra witnesses, one of whom is an expert, and the matter was listed for four days.  This Court does not have the resources to hear five or more day trials.

16. It is likely that the parties will have hearing dates earlier in the Family Court of Australia than I can provide subsequent to this adjournment. 

17. Turning to the application, the Applicant seeks a further Family Report.  That will not be ordered.  The report from Mr P is dated November 2017. I am of the view, though, that it is important, having regard to the numerous subpoena that the Applicant in this application now seeks to tender and seeks an order for leave to issue more than five subpoena ongoing, to appoint an Independent Children’s Lawyer. I will appoint an Independent Children’s Lawyer. 

18. Having regard to the adjournment application of late notice, I will reserve the Applicant Father’s costs of today for later determination.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 22 February 2018