MALUKA & MALUKA
[2012] FamCA 373
•29 February 2012
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 | of | 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 that the trial would be governed by section 69ZT(1) of the Act. For reasons which need not be detailed there was no real inconsistency in the stances formally and informally adopted by Counsel for the father or Counsel for the ICL.
In support of her contention that section 69ZT(1) should continue to apply Senior Counsel for the mother submitted that there was nothing “exceptional” about the case and that whilst it had some unusual features those unusual features did not individually or cumulatively render the case exceptional.
The reference to “exceptional” in Senior Counsel for the mother’s submissions and in the submissions of Counsel for the father and Counsel for the ICL is a reference to the terms of section 69ZT(3). It may be instructive at this point to refer to the provisions of that subsection, which provides that:
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part [of the Evidence Act] mentioned in that subsection to an issue in the proceedings. …
Pausing there, it can, with accuracy, be recorded that expressly or impliedly Counsel for all parties, with respect, sensibly in the Court’s view, urge what might be described as an “all or nothing”, but perhaps more correctly described as a consistent approach to the evidence which will be adduced in the trial. That is to say, whether the Court continues to apply section 69ZT(1) or determines that section 69ZT(3) should be invoked, the Court has been invited, if not urged, to adopt a consistent approach to the evidence rather than attempting to deal with the evidence in part by reference to the Evidence Act, and in other part or parts by reference to section 69ZT(1).
The logic underpinning the position advanced by all Counsel is, to the Court’s mind, irresistible. To do other than either apply the provisions of the Evidence Act wholly or to dispense with them wholly would in the circumstances of this case, only be conducive to confusion at best, and at worst raise a serious possibility that a party or parties would be denied natural justice.
The provisions of section 69ZT(3), it is clear both by reference to the terms of the section, and to those authorities where the operation of the section has been considered, require that a series of conditions, which are conjunctive and not disjunctive, must be satisfied before the Court can invoke section 69ZT(3).
As noted earlier, the Court must be satisfied, pursuant to section 69ZT(3)(a), that the circumstances are “exceptional”. In reaching such a conclusion, if it be reached, the Court must have taken into account, in addition to any other matters which the Court considers relevant, the four matters which are articulated in section 69ZT(3)(b)(i) to (iv) :
(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.
The last-mentioned factor does not appear to expressly or impliedly assume any significance in the current debate. With respect, it is difficult, having regard to the terms of that provision, to see how it readily could, given that the Court in dispensing justice according to law, the law in this case being that contained in Part VII of the Act. The Court retains inherent and other statutory powers to control the course of proceedings so that due process and the rules of natural justice are observed.
The three areas of significance are the first three articulated in section 69ZT(3)(b). Returning to the submissions of Counsel for the parties, as noted earlier, whilst not asserting that it was determinative of the issue, Senior Counsel for the mother submitted, uncontroversially, that the case had been prepared for trial in reliance upon it at least tacit agreement between the parties that section 69ZT(1) would apply. It was submitted, and the Court accepts it to be so, that to invoke section 69ZT(3) may necessitate the parties having some time to reformulate issues, reconsider the evidence which would be adduced in the trial.
In the course of her submissions, Senior Counsel for the mother referred to some of the matters which were likely to assume significance, one of which Senior Counsel for the mother conceded was a major issue in the trial, was what was described as the serious 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 which are set for trial.
Senior Counsel for the mother referred the Court to the decision of the Full Court in the appeal against the decision of an earlier trial Judge in this case, and in particular to paragraphs 118 to 127 of the judgment of the Full Court. The Court accepts, as it 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 applied in the past.
As is not in doubt, in Maluka (supra) the Full Court concluded that it was open to the previous trial Judge in the exercise of his discretion to decline to find that the circumstances of the case were “exceptional” and to thus continue to apply section 69ZT(1). As Counsel for the parties all agree, nothing in the Full Court’s judgment in this case suggests that the trial Judge’s conclusion, with respect to the operation of section 69ZT(1), was the only one reasonably open to him or that it would not have been reasonably open to have invoked section 69ZT(3).
As Senior Counsel for the mother reminded the Court, and Counsel for the ICL reiterated, their Honours, at paragraph 123, rejected the submission advanced in the Full Court that the fact that the proceedings may have resulted in the complete termination of a relationship between children and their father could of itself constitute exceptional circumstances. That said, the Court does not understand anything said by their Honours in paragraph 123 or elsewhere in Maluka (supra) to establish that a likely outcome of the proceedings could not be taken into consideration in determining whether or not exceptional circumstances would be established.
That factor would appear to be comfortably accommodated within section 69ZT(3)(b)(2); that is the nature of the subject matter of the proceedings. As is not in doubt, the subject matter in this case is whether the children should or should not have an ongoing relationship with their father.
Counsel for the father submitted, largely in the terms just indicated by reference to the issue at stake in the proceedings, that the circumstances were “exceptional”. Counsel for the father’s submissions, in effect, adopted a number of matters which had emerged in discussion with him earlier in the morning. It is unnecessary to reiterate those matters an hour or so after they were first agitated.
Counsel for the ICL supported the application of section 69ZT(3) on a number of bases, one of which was that not only did the determination of this preliminary 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 resonates with the Court as a factor influential in favour of invoking section 69ZT(3). To the extent that expert opinion evidence may require factual underpinning, it is desirable that it be underpinned by reliable evidence of fact, if it is available, than evidence which cannot safely be relied upon.
Counsel for the ICL made a number of other submissions which it is not necessary to repeat, which is not in any way to suggest that they were without substance but rather that, in the Court’s view, the issue turns more on other factors than perhaps on matters such as the operation of section 190 of the Evidence Act, or the operation of the business records provisions of the Evidence Act.
In the course of her submissions, Senior Counsel for the mother acknowledged that the decisions of the High Court in M v M (supra) and B v B (supra) remained an accurate statement of the law and that this issue could be looked at in the context of that decision. In M v M (supra), at pages 76-77, and B v B (supra) Mason CJ, Brennan, Dawson, Toohey, and Gaudron JJ said:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw & Briginshaw. There Dixon J. said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” [Footnote omitted]
Their Honours in M v M (supra), at page 77, continued:
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. [Footnote omitted]
The parallels between allegations of sexual abuse and allegations of domestic or family violence for the purpose of this ruling are submitted to be obvious and substantial. This ruling is not made in isolation, but rather in the context of the provisions of Part VII which refer to domestic or family violence.
Without needlessly and unproductively digressing to refer to those matters, as the Act makes clear, the applicability or otherwise of the statutory presumption of equal shared parental responsibility depends upon whether or not the Court has “reasonable grounds to believe” that a parent of a child has engaged in family violence.
Where the Court has reasonable grounds for so believing the presumption of equal shared parental responsibility does not apply. Even if the presumption does apply, it may be rebutted on the basis of best interests pursuant to section 61BA(4). Best interests, as articulated in section 60CC of the Act, commences with what are described as “primary considerations” of which there are two, the second being the need to protect the child from, in the context of this case, family violence, of being subjected to or exposed to family violence.
Section 60CC(3)(j) reiterates as a factor to be taken into account in determining best interests;
any family violence involving the child or a member of the child’s family;
Other parts of other provisions in section 60CC(3) are liable to informed by findings of fact with respect to family or domestic violence.
Section 4 of the Act (the definition section), defines family violence in the following terms:
means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
It is readily apparent that family violence is widely defined for the purpose of the Act in general, Part VII in particular.
This is a factor of significance in the exercise of the Court’s discretion. In Maluka (supra) the Full Court made clear that applying section 60ZT(3) is ultimately discretionary. The exercise of discretion must be informed by reference to the factors provided for in the section. In the Court’s view, that discretion can permissibly be influenced by the matters to which reference has just been made.
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.
The obvious possible mischief in relation to the father is that a finding which would be unsafe could be made if section 69ZT(1) continued to apply. Less obvious, but in the Court’s view no less important, is the risk that the mother may have the benefit of a finding in the terms urged by her Counsel which, because it is reliant upon evidence which would not otherwise be admissible but for section 69ZT(1), is held on appeal to be unsafe.
In the Court’s view with section 69ZT(1), the difficulty, as suggested to Counsel during the course of debate throughout the morning, in the context of proceedings where allegations of family or domestic violence are a major issue is that, ultimately, the parties cannot know what, if any weight, is given to evidence which would otherwise be inadmissible until the delivery of judgment. Relying upon evidence which is admissible has the attraction that the proceedings are transparent. Findings of fact can be made upon evidence which, being admissible, if accepted, are “safe”. If based upon erroneously admitted, or rejected evidence, those findings can be overturned. Those findings of fact can be challenged in the time-honoured way. An appeal Court faced with such challenges can determine them in accordance with well-settled principles.
To the extent that discretionary challenges are raised which are not dependent upon overturning findings of fact, an appellate Court has the considerable advantage of knowing exactly what facts were found and that they were made in reliance upon evidence which was admissible. The task of then determining whether inferences drawn or conclusions reached in reliance upon those findings of fact exceeded the generous ambit of a reasonable exercise of discretion becomes more readily achievable.
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.
As Senior Counsel for the mother earlier in the morning submitted, and the Court accepts as undoubtedly a correct statement of the law, the allegations have potentially two-fold relevance. The first is whether pursuant to section 140 of the Evidence Act and mindful of the High Court’s reiteration of what Dixon J said in Briginshaw, the Court is satisfied that there has been domestic or family violence (see M v M (supra) at pages 76-77).
The second, and potentially no less important matter having regard to the authorities, is whether, even if there is not an affirmative finding in the terms urged on behalf of the mother, the Court finds that the mother has a genuine belief in relation to the apprehension of violence. The reasonableness or otherwise of that belief may well assume significance also. To the extent that it does, the ability of the Court to evaluate these issues by reference to admissible evidence is likely to be a considerable benefit.
The importance of the evidence in the proceedings is influential in concluding that the circumstances are exceptional. As noted earlier, the nature of the subject matter of the proceedings, and the significance of the outcome, either way, and it ought not be thought that the significance of the outcome is one way, are matters of significance. Thus the nature of the subject matter of the proceedings, irrespective of their outcome is, in the Court’s view, a matter which is supportive of concluding that the circumstances are exceptional in the sense the section contemplates.
The third matter, the probative value of the evidence, as currently constituted the Court has some difficulty with that provision. It is, for judicial officers steeped in the common law tradition, almost a contradiction in terms to need to evaluate the probative value of evidence which, but for section 69ZT(1), could not be evidence.
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.
As noted earlier, this aspect of the matter is not a one-way street. It might superficially be thought that to apply section 69ZT(3) would, to use the colloquial, raise the bar in terms of the onus which the mother bears. As suggested earlier, however, that is not entirely accurate and there is, in the Court’s view, an inherent danger in relying upon evidence which would be inadmissible, but for section 69ZT(1), that the mother may well be placed in a position where she has the benefit of findings of fact which are not sustainable on appeal. It could be asked rhetorically, what mischief would be likely to arise from the application of the rules of evidence? None has been suggested. That is unsurprising, as the provisions of the Evidence Act facilitate rather than impede the receipt of evidence probative of facts or issues in dispute, and guard against the receipt of “evidence” which could not safely or fairly do so.
In all the circumstances and mindful, as the Court is, that so doing may involve some lost time whilst the parties, to use the colloquial, regroup, the Court is persuaded that the interests of justice would be better served by concluding, as it does, that the circumstances are exceptional.
Whilst not in isolation capable of constituting exceptional circumstances, but given that section 69ZT(3)(b) provides the Court in the exercise of its discretion with the ability to have regard to any other matters the Court thinks relevant the Court does have regard, albeit the significance of it is very much less than the factors which have been expressly articulated, to the reality that this is the re-trial of a case which was heard over some time by another trial Judge prior to 2010. It then went to appeal in February 2010. The Full Court delivered its judgment in March 2011.
If at all possible, which is not to suggest that the outcome of the trial ought not be subjected to appellate review if a party is dissatisfied with it, against the background and the history of these proceedings, the Court is convinced that it would be preferable to adopt a course which is less rather than more conducive to appealable error, at least in terms of the evidence before it. To apply the provisions of the common law as codified by the Evidence Act with respect to the evidence is, in the Court’s view, potentially a safer and fairer course, and a course more likely to secure natural justice for both parties.
For those reasons the Court will apply 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.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 29 February 2012.
Associate:
Date: 7 March 2012
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