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MALUKA & MALUKA

MALUKA & MALUKA

Case [2012] FamCA 373 29 February 2012

Jurisdiction

Statutory Construction

Procedural Fairness

Family Law

Evidence

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

MALUKA & MALUKA

[2012] FamCA 373

FAMILY LAW – EVIDENCE – Whether section 69ZT of the Family Law Act1975 (Cth) (“the Act”) should be applied or whether section 69ZT(3) of the Act should be invoked so as to facilitate the trial proceeding by reference to evidence which fell within and was governed by the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) – Where the Court was persuaded that the interests of justice would be better served by concluding that the circumstances are exceptional– Where the Court applied the provisions of the Evidence Act to the proceedings in accordance with the power to do so created by section 69ZT(3) of the Act

Evidence Act 1995 (Cth) ss 140, 190
Family Law Act 1975 (Cth) ss 60CC, 61BA, 69ZT, Part VII

B v B (1988) FLC 91-978
M v M (1988) 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Maluka & Maluka [2011] FamCAFC 72

APPLICANT:

Ms Maluka

RESPONDENT:

Mr Maluka

INDEPENDENT CHILDREN’S LAWYER:

Butler McIntyre & Butler

FILE NUMBER:

HBC

733

2008

DATE DELIVERED:

29 February 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Coleman J

HEARING DATE:

29 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McMillan SC

SOLICITOR FOR THE APPLICANT:

PWB Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Blissenden

SOLICITOR FOR THE RESPONDENT:

Blissenden Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Butler McIntyre & Butler

Orders

That the provisions of the Evidence Act1995 (Cth) be applied to the proceedings in accordance with section 69ZT(3) of the Family Law Act1975 (Cth).

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 733 of 2008

Ms Maluka

Applicant

And

Mr Maluka

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

When the proceedings were called on for trial earlier this morning the Court raised with Senior Counsel for the mother, and Counsel for the father, and Counsel for the Independent Children’s Lawyer (“ICL”) the question of whether section 69ZT(1) of the Family Law Act1975 (Cth) (“the Act”) should be applied or whether section 69ZT(3) of the Act should be invoked so as to facilitate the trial proceeding by reference to evidence which fell within and was governed by the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The positions of the parties were essentially that Senior Counsel for the mother urged the Court not to dispense with the application of section 69ZT(1) for reasons which will shortly be referred to. Counsel for the father and the ICL urged the Court to apply section 69ZT(3) of the Act.
It was fairly conceded by Counsel for the father and Counsel for the ICL that there had been at least tacit agreement up to its commencement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MALUKA & MALUKA

Details

AGLC: MALUKA & MALUKA [2012] FamCA 373
Case: [2012] FamCA 373
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the matter of *Maluka & Maluka*, heard before Coleman J, the dispute concerned the application of evidentiary provisions within family law proceedings. The central question before the Court was whether to apply section 69ZT of the *Family Law Act 1975* (Cth) or to invoke subsection (3) of that section to permit the trial to proceed by reference to evidence governed by the *Evidence Act 1995* (Cth).

The Court was required to determine whether the circumstances of the case were exceptional, justifying the application of the *Evidence Act 1995* (Cth) rather than the default provisions of section 69ZT of the *Family Law Act 1975* (Cth). This involved a consideration of which approach would best serve the interests of justice in the particular proceedings.

Coleman J reasoned that the interests of justice would be better served by concluding that the circumstances were exceptional. Accordingly, the Court exercised its power under section 69ZT(3) of the *Family Law Act 1975* (Cth) to apply the provisions of the *Evidence Act 1995* (Cth) to the proceedings. The Court ordered that the provisions of the *Evidence Act 1995* (Cth) be applied to the proceedings in accordance with section 69ZT(3) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That the provisions of the Evidence Act 1995 (Cth) be applied to the proceedings in accordance with section 69ZT(3) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

MALUKA & MALUKA [2012] FamCA 373

Most Recent Citation

Monette & Monette (No 2) [2024] FedCFamC1F 481

Cases Citing This Decision

Moss & Moss (No 2) [2025] FedCFamC1F 510
Citation 1

…Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Maluka & Maluka (2012) 47 Fam LR 272; [2012] FamCA 373 Merritt & Merritt [2018] FamCA 1107 Murdock & Madden [2011] FamCAFC 219 Quincey & Quincey [2024] FedCFamC1A 30 R & C [1993] FamCA 62 R v JAE (2021) 294 A Crim R 146; [2021] QCA 287 Re Andrew (1996) FLC 92-69…
Monette & Monette (No 2) [2024] FedCFamC1F 481
Citation 2 (Para 3)

…In the decision of Maluka & Maluka [2012] FamCA 373, Coleman J 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…
BABIC & TAKALA [2017] FCCA 1631
Citation 3 (Para 2)

…icated that the Court was not required to make any findings about specific allegations of family violence. As Justice Coleman said in Maluka & Maluka [2012] FamCA 373 at [28] “as is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violenc…
Small and Small [2016] FamCA 433
Citation 4 (Para 13)

…In the rehearing of Maluka (supra) Coleman J in Maluka & Maluka [2012] FamCA 373 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 e…
PROCTOR & PROCTOR [2016] FCCA 613
Citation 5 (Para 13)

…ence 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 .[37] [36] [2012] FamCA 373 at para 28. [37] Whilst His Honour had determined by reference to section 69ZT(3) of the Act that there were exceptional circumstances, the comments ma…
De Silva and Rogers (No. 2) [2014] FamCA 1034
Citation 6 (Para 12)

…bility of the evidence and the safety of any findings made on the basis of such evidence and in Maluka also the issue of transparency was raised. [1] [2012] FamCA 373 [2] [2014] FamCA 878…
PHITZNER & HOLLAS [2014] FamCA 344
Citation 7 (Para 14)

…In the rehearing of Maluka by Coleman J in Maluka & Maluka [2012] FamCA 373 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…
Cholic and Cholic [2014] FamCA 234
Citation 8 (Para 15)

…In the rehearing of Maluka by Coleman J in Maluka & Maluka [2012] FamCA 373 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…
Vaughton and Randle [2014] FamCA 147
Citation 9

…Briginshaw v Briginshaw (1938) 60 CLR 336 M & M (1988) 166 CLR 69 Maluka & Maluka (2011) FLC 93-464 Maluka & Maluka [2012] FamCA 373 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 McShane & Tanner (No 2) [2011] FMCAfam 508…
Khalil & Tahir-Ahmadi [2012] FamCAFC 68
Citation 10 (Para 2)

…It is a matter of some interest that in the re-hearing of Maluka by Coleman J ( Maluka & Maluka [2012] FamCA 373), his Honour determined that the circumstances were exceptional within the meaning of s 69ZT(3). In that matter, counsel for the parties and the Independent Children’s Lawyer urged his Honour to adopt th…

See all citing cases →

Cases Cited

Maluka v Maluka [2011] FamCAFC 72
Citation 1 (Para 13)

…must, and has no difficulty doing, that as a general statement of principle, as their Honours recorded in the Full Court judgment in Maluka & Maluka [2011] FamCAFC 72, section 69ZT does provide a quite different evidentiary regime in parenting proceedings to that which, but for section 69ZT, would apply and has app…
M v M [1988] HCA 68
Citation 2 (Para 12)

…erious issue of domestic or family violence. It was submitted, and with respect, correctly, having regard to the decisions of the High Court in M v M (1988) 166 CLR 69 and B v B (1988) FLC 91-978 that the determination of that issue, though major, was not either pivotal to or decisive of the parenting proceedings wh…
Pty Ltd v Sprowles 636 F Supp 1419
Citation 3 (Para 18)

…iminary issue have the potential to impact upon findings of fact made with respect to lay evidence, but, that however viewed, in a Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 sense, the ruling had the potential to impact upon expert opinion evidence which would be adduced during the trial. That submission reso…

Legislation Cited

Family Law Act 1975 (Cth) 60CC, 61BA, 69ZT
4 mentions (from Para 1)
Evidence Act 1995 (Cth) 140, 190
3 mentions (from Para 1)