Maluka v Maluka

Case [2011] FamCAFC 72

FAMILY COURT OF AUSTRALIA

MALUKA & MALUKA [2011] FamCAFC 72

FAMILY LAW - APPEAL – CHILDREN – Meaningful Relationship – Supervised time application – Whether the trial Judge failed to give adequate consideration to s 60CC(2)(a) and (b) of the Family Law Act 1975 (Cth) – Whether the trial Judge erred in finding that no meaningful relationship existed between the father and the children – Whether the findings made by the trial Judge with regards to the relationship between the father and the children were not supported by the evidence – Where the trial Judge failed to give adequate consideration to the making of a supervised time order – Where the trial Judge failed to adequately assess the risk and benefits associated with supervised time at a contact centre – Appealable error established.

FAMILY LAW - APPEAL – USE OF SOCIAL SCIENCE MATERIAL – Whether the trial Judge denied the father procedural fairness by the manner in which he took into account extrinsic social science material – Common Knowledge – Application of notice provisions under s 144(4) of the Evidence Act 1995 (Cth) – Although the trial Judge invited submissions about what use could be made of the material, he failed to reveal in advance how it might be used – Where the trial Judge failed to give adequate reasons in relation to the ultimate use of the social science material – Appealable error established.

FAMILY LAW - APPEAL – EVIDENCE – Section 69ZT of the Family Law Act 1975 (Cth) – Whether the trial Judge erred in not making an order under s 69ZT(3) of the Family Law Act 1975 (Cth) to apply ss 97 & 98 of the Evidence Act 1995 (Cth) – Where finding that circumstances were not “exceptional” within the meaning of s 69ZT was open – Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 considered – There is no rule of general application in cases where a court is asked to terminate a child’s relationship with a parent that a judge must apply the rules of evidence excluded by 69ZT(1) of the Family Law Act 1975 (Cth) – No appealable error established.

FAMILY LAW - APPEAL – FINDINGS OF FACT – Whether the trial Judge failed to give adequate reasons for grave factual finding – Where this finding influenced his Honour’s risk of harm assessment – Appealable error established.

FAMILY LAW - APPEAL – COSTS – Costs certificates granted to both parties for the appeal and rehearing.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Violence Act 2004 (Tas)
Amador v Amador (2009) 43 Fam LR 268
Johnson v Page (2007) FLC 93-344
Lamereaux & Noirot (2008) FLC 93-364
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) FLC 93-405
APPELLANT: Mr Maluka
RESPONDENT: Ms Maluka
INDEPENDENT CHILDREN’S LAWYER: Ms A. Grant
FILE NUMBER: HBC 733 of 2008
APPEAL NUMBER: SA 77 of 2009
DATE DELIVERED: 31 March 2011
PLACE DELIVERED: Sydney
PLACE…

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AGLC
Maluka v Maluka [2011] FamCAFC 72
Case
[2011] FamCAFC 72
Decision Date

CaseChat Overview and Summary

The appeal in Maluka v Maluka concerns a dispute between the father and mother of a child over parenting arrangements. The case was heard in the Family Court of Australia, with an appeal subsequently made to the Full Court of the Family Court. The central legal issue in the appeal was whether the trial judge erred in considering certain social science material without providing the parties with an opportunity to comment on its admissibility and relevance. Specifically, the father argued that the judge did not adequately consider the material's relevance and the potential for unfair prejudice, as required under section 144 of the Evidence Act.

The Full Court examined whether the trial judge properly adhered to the procedural requirements for taking judicial notice of facts, as outlined in section 144 of the Evidence Act. The Court referenced expert commentary on the use of social science material and the need for parties to be given an opportunity to comment on such material. The Court also noted that the Full Court in McCall v Clark had emphasised the importance of parties being informed when a judge intends to rely on material not presented by the parties. Given these principles, the Court found that the trial judge did not provide the parties with a sufficient opportunity to comment on the social science material, leading to a breach of natural justice.

Consequently, the appeal was allowed, and the orders made by the trial judge were set aside. The Court ordered that the matter be remitted for re-hearing before a different judge. Additionally, the Court granted costs certificates to both parties, allowing for potential reimbursement of their legal costs from the Attorney-General under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

1.

That the appeal against orders made by the Honourable Justice Benjamin on 24 July 2009 is allowed, and subject to Order 2 of these orders, the orders are set aside.

2.

Pending the further hearing and determination of the proceedings between the parties, or until further order, the orders made by the Honourable Justice Benjamin on 24 July 2009 remain in force.

3.

That the matter is remitted for re-hearing before a judge other than the Honourable Justice Benjamin.

4.

That there be no order for costs in relation to the appeal.

5.

That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

6.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

7.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial granted by these orders.

8.

In the event that the Independent Children’s Lawyer would seek certificates under the Federal Proceedings (Costs) Act 1981 (Cth), the Independent Children’s Lawyer is at liberty for 21 days to file written submissions in relation to the Court’s power to grant certificates to the Independent Children’s Lawyer pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Then at paragraph 385 his Honour said:What the material does do is enable categorisation of the father’s violent pre-disposition and provide the court with further evidence of the likelihood of the continuation of that violence. (our emphasis) It is the bolded component of paragraph 385 which is under challenge in Ground 4. So that it is clear, when his Honour sought submissions in relation to this material he did not indicate it potentially constituted “further evidence of the likelihood of the continuation of that violence”. We agree the use of social science material is governed by s 144 of the Evidence Act. This provision is not excluded by s 69ZT of the Family Law Act (the provisions of which we will later explain). Andrew Ligerwood & Gary Edmond in Australian Evidence (2010, 5th ed, LexisNexis Butterworths) when discussing judicial notice and the consultation by judicial officers with authoritative works, state (at [6.66]):Where judicial notice is taken on inquiry the mode of inquiry is left to the courts and the ordinary rules of evidence (for example, the hearsay rule) do not apply. Nevertheless, the court should give the parties the opportunity to comment upon the propriety of taking judicial notice and the appropriate method of enquiry, before it embarks upon an inquiry of is own. And where that inquiry consists of consulting authoritative works or experts, there is authority for the view that this should take place in the presence of parties, allowing opportunity for comment. These principles appear to lie behind the uniform legislation. It allows the court to acquire knowledge subject to notice ‘in any way the judge thinks fit’ but provides in s 144(4) that:The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudicedOnly if the court decides that the fact is indisputable and not practicably susceptible to adversary proof in the ordinary way, and that acting on that knowledge will not result in unfair prejudice to a party, can judicial notice be taken… (footnotes omitted) These writings are consistent with comments made by the Full Court in McCall v Clark (per Bryant CJ, Faulks DCJ and Boland J), in which their Honours observed at paragraph 126:… Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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