Malinowski & Gutermuth
[2024] FedCFamC1F 546
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malinowski & Gutermuth [2024] FedCFamC1F 546
File number(s): ADC 493 of 2023 Judgment of: BERMAN J Date of judgment: 16 August 2024 Catchwords: FAMILY LAW – EVIDENCE – Where the father has been charged with an offence relating to a child of the proceedings – Where the mother seeks a finding in these proceedings, on the balance of probabilities, that the father committed the offence – Where the father seeks a section 128 Certificate in relation to his trial affidavit and cross-examination evidence – Where the mother does not opposed the order – Where the Court considers it appropriate to issue said certificate. Legislation: Evidence Act 1995 (Cth) ss 128, 140
Family Law Act 1975 (Cth) ss 68B, 69ZT, 102NA, 114
Cases cited: Ferrall & Blyton (2000) FLC 93-054
Maluka & Maluka (2007) FLC 93-464
Maluka & Maluka [2012] 47 Fam LR 272
Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 13 August 2024 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Andersons Solicitors Counsel for the Respondent: Ms Fuda Solicitor for the Respondent: Pascale Legal Barristers & Solicitors Counsel for the Independent Children's Lawyer: Mr Harley Solicitor for the Independent Children's Lawyer: Harley & Co Lawyers ORDERS
ADC 493 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALINOWSKI
Applicant
AND: MS GUTERMUTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
16 AUGUST 2024
UPON NOTING that the requirements of s 102NA(3) of the Family Law Act 1975 (Cth) will apply to any cross-examination occurring in the proceedings;
AND FURTHER NOTING that the parties have each been advised by the Court that:A.Pursuant to those requirements, neither party may cross-examine the other party personally;
B.Pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
C.As to the availability of the Commonwealth Family Violence and Cross- Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
D.A copy of these orders will be provided by the court to Legal Aid South Australia, which administers the said scheme.
THE COURT ORDERS THAT:
1.The requirements of s 102NA(3) and 102NA(1)(c)(iv) of the Family Law Amendment (Family Violence and Cross Examination of Parties) Act 2018 will apply to any cross‑examination occurring in the proceedings and that the parties are each prohibited from personally cross-examining each other.
2.Pursuant to s 128 of the Evidence Act 1995 (Cth), a certificate be granted to the father’s evidence whether by affidavit or oral evidence in relation to:
(a)All evidence arising from the affidavit of the mother filed 2 August 2024;
(b)All other evidence as may be adduced alleging that the father has committed an offence against Y; and
(c)In relation to the allegation that in the calendar years 2021 and 2022 the father assaulted Y whilst at their home address.
3.The parties do each pay one half of the fees charged by Ms B for the preparation of a Family Assessment Report and if required, the costs of her attendance to give evidence in the trial commencing 24 September 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Berman J
INTRODUCTION
Mr Malinowski (“the father”) and Ms Gutermuth (“the mother”) are not able to agree the future parenting arrangements for their three children, X born 2006, Y born 2013 and Z born 2021 (collectively “the children”) although given that X is 17 years of age, the proceedings are in reality, only in relation to Y and Z.
The parties commenced a relationship in 2003 and whilst consequent upon a number of separations, the parties ultimately separated on final basis on 10 January 2023. The parties were never married.
Y and X live with the mother in the former matrimonial home in Suburb D. The father left the premises at the date of final separation as a result of allegations made by the mother that the father had assaulted the child, Y.
The father continues to deny having committed an offence against Y.
It appears that the mother’s allegations were the subject of detailed consideration by South Australian Police (“SAPOL”) and the Department for Child Protection (“DCP”) in early 2023. As a result of the mother ceasing the father’s time with Y and X, the proceedings were commenced by Initiating Application in February 2023.
In addition to allegations of assault against the child, the mother further alleges that the father perpetrated family violence including physical and verbal assault, emotional trauma together with conduct and behaviour that would be considered as coercively controlling and threatening.
The father further denies the mother’s allegations of family violence and considers that the mother may well present with mental health issues which would in part explain her support for the allegation that the father perpetrated family violence and assaulted Y. At worst, the father considers that the mother has fabricated the various allegations.
The father last saw Y and Z in a supervised visit in late 2023. However, he has not spent time with the children since that date.
The parties were not considered suitable to be accepted into a Children’s Contact Service.
The proceedings have been listed for final hearing to commence on 23 September 2024 as a 5 to 10 day matter. On 5 June 2024, trial direction orders were made that required the mother, notwithstanding that she is a respondent to the proceedings, to file her trial material by 4.00 pm on 2 August 2024 with the father to file his material by 4.00 pm on 13 September 2024.
The proceedings are assisted by the involvement of an Independent Children’s Lawyer (“ICL”).
Liberty was granted to each party and the ICL to relist the matter at short notice in relation to trial directions. By joint letter of request dated 7 August 2024, the solicitors for the parties requested for the matter be relisted as soon as possible foreshadowing that the father had been served with an Information and Summons in relation to an Information and Complaint that he had assaulted Y at some time in both the 2021 and 2022 calendar years.
The father gave notice that he would seek orders pursuant to s 102NA of the Family Law Act 1975 (“the Act”) and s 128 Certificate pursuant to the Evidence Act 1995 (Cth) (“the Evidence Act”).
The proceedings were listed for hearing on 13 August 2024. Each of the parties appeared and were represented by counsel with the ICL appeared in his own capacity.
A copy of the Information and Summons issued mid-2024 was tendered (“Exhibit 1”) which confirmed that the father is to appear in a Magistrate’s Court in mid-2024 charged with two counts of assault alleging that:
between the first day of January 2021 and thirty first day of December 2021 (count 1) and between the first day of January 2022 and the thirty first day of December 2022 (count 2) at [Suburb D] in the said state […] assaulted [Y] a child under the age of 14 years pursuant to […] the Criminal Law Consolidation Act 1935.
Given that there was no opposition from either the mother or the ICL to the orders sought on behalf of the father, leave was given for the matter to proceed upon the father’s oral application.
SECTION 102NA APPLICATION
Section 102NA(1) – Mandatory protections for parties in certain cases
Section 102NA (1) provides that:
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross-examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross-examination;
then the requirements of subsection (2) apply to the cross-examination.
In the current circumstances the father has been charged with two counts of assaulting Y which constitutes a Major Indictable Offence.
In addition, there are significant allegations made by the mother alleging that the father is the perpetrator of family violence.
Orders have been made pursuant to s 69ZW of the Act, prior to the amendments, seeking information from SAPOL and DCP of documents involving any notification of suspected family violence involving the children and/or the parties.
Section 102NA(3) provides:
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i) the witness party; or
(ii) the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings – that lawyer.
Whilst the father is the subject of charges in respect of Y, there are no criminal proceedings involving the mother. There are no orders pursuant to s 68B or s 114 of the Act and accordingly, whilst the mandatory prohibition against the cross-examination of the party personally does not operate, I consider that there is sufficient evidence before the Court that would satisfy the necessary requirements to exercise my discretion to impose the protection of the parties pursuant to s 102NA of the Act.
Section 128 Certificate
By oral application, counsel for the father sought a certificate be issued pursuant to s 128 of the Evidence Act to cover the evidence that the father would give at trial whether by way of affidavit, cross-examination or evidence given in chief and in particular, evidence arising from evidence foreshadowed to be led by her in relation to the broad allegation that the father committed an offence against Y but in particular, in respect of the submission of counsel that as part of the mother’s case, she will seek a finding on the balance of probabilities that the father assaulted Y consistent with the particulars as set out in Counts 1 and 2 of the Information and Summons.
Section 128 of the Evidence Act provides as follows:
(1)This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b) is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b) that the court will give a certificate under this section if:
(i)the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c) of the effect of such a certificate.
In dealing with the NSW equivalent of the Evidence Act, Einstein J in the decision of Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchliffe [2009] NSWSC 354 at [184]-[185] said:
The terms of s 128 clearly contemplate that a certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken.
As yet, the father has not yet filed any affidavit material, but he is on notice of the matters raised in the mother’s trial affidavit alleging that he assaulted Y.
In respect of a consideration as to whether to grant a certificate pursuant to s 128 of the Evidence Act, I consider that the father should carry the burden of proof. It is an obligation that is to be discharged on the balance of probabilities namely, that there are reasonable grounds for him to object to give the evidence without the protection of a certificate.
Section 140 of the Evidence Act provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceedings; and
(c) the gravity of the matters alleged.
In Ferrall & Blyton (2000) FLC 93-054, the Court concluded that:
89.We think the trial Judge was clearly correct in holding that it was within his discretion to grant such a certificate. Firstly, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross-examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross-examine.
90.In the particular circumstances of the Family Court of Australia, evidence in chief is normally given by affidavit. We think that in the circumstances of the present case, the witness was objecting, in the sense required by s.128, by indicating that he would not file the affidavit unless a certificate was given. We see the situation as no different from that which would have been the case if he had been sworn in and asked to answer questions concerning the matter in evidence in chief, and had objected to doing so without the issue of such a certificate.
In the present case, there is no speculation. There is now information laid against the father and the nature of the alleged offences are extremely serious.
In this case, the father has elected to proceed with the trial, notwithstanding the criminal charges are pending, on the basis of his concern that the interests of the children are being adversely affected by the lack of any meaningful relationship with him.
The mother is not objecting to the proceedings being heard and does not speak against the father being granted a s 128 certificate. There was no objection on behalf of the ICL or any other interested party.
As such, I consider that in all the circumstances, it is proper for a certificate to issue in terms so ordered. I propose to limit the application of the s 128 certificate to the evidence given by the father in relation to the mother’s trial affidavit and in respect of any other evidence that might be presented to the Court that relates to the allegation of the father having been the perpetrator of an offence against Y and that he assaulted Y as set out in the particulars to Count 1 and 2 of the Information and Summons filed 5 July 2024.
THE APPLICATION OF SECTION 69ZT OF THE ACT AND THE APPLICATION OF THE EVIDENCE ACT
The Full Court in Maluka & Maluka (2007) FLC 93-464 gave consideration to the circumstances of the application of s 69ZT in a case that involved allegations of family violence and sexual abuse. At [121] the Full Court considered the extent of judicial discretion in the application of the section and held:
121.Before us, it was submitted that where the subject matter of the hearing involved consideration of the termination of a child’s relationship with a parent, a trial Judge must apply s 69ZT(3) of the Act to the entire hearing. While it was acknowledged the sub-section is not expressed in mandatory terms, any other outcome was said to be erroneous.
122.The Full Court in Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to s 69ZT. Namely, that the decision to apply sub-section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein...
123.We do not accept the father’s argument that the effect of s 69ZT is to establish a rule of general application that in cases where a court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by s 69ZT(1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victim partners why, notwithstanding an order is sought to terminate a child’s relationship with a parent, a judge might determine the risk issue by reference to ss 69ZT(1) and (2) of the Act.
In the rehearing of Maluka by Coleman J in Maluka & Maluka [2012] 47 Fam LR 272, his Honour said:
28.As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.
…
32.It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M v M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
37.Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.
Again, in the circumstances of this case, there is a concession by the mother that she seeks that the Court make a finding, on the balance of probabilities, that the father assaulted Y consistent with the particulars as set out in Counts 1 and 2 of the Information and Summons.
It is also apparent from the orders sought by the mother that she seeks that there be no relationship, contact or communication between the father and the subject children.
In those circumstances, I consider that to the extent that there is evidence to be presented which seeks to establish on the balance of probabilities that the father assaulted Y, the provisions of s 69ZT(1) of the Act should be dispensed with and the evidence should be presented consistent with the provisions as to relevance and admissibility as set out in the Evidence Act.
COSTS OF THE SINGLE EXPERT
Ms B has prepared a Family Assessment Report dated 30 May 2024 as annexed to the affidavit of the father’s solicitor filed 5 June 2024.
Ms B was jointly instructed by the parties and as such she is entitled to render a fee for her service. There is a concession on behalf of the mother that she will pay one half of the fees charged both for the preparation of the report and relevant attendances together with the attendance of Ms B as a witness in the proceedings.
The father does not consent to such an order but does not speak against an order being made that each of the parties share equally in the costs of the involvement of Ms B in the proceedings.
Given that it is likely the evidence of Ms B will be relevant to the proceedings, I consider it appropriate that an order be made for the parties to share the costs of the single expert.
I make orders as appear at the commencement of these reasons.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 16 August 2024
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