Maluka v Maluka
[2011] FamCAFC 72
•31 March 2011
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 HEARD: | Hobart |
| JUDGMENT OF: | Bryant CJ, Finn and Ryan JJ |
| HEARING DATE: | 9 February 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 July 2009 |
| LOWER COURT MNC: | [2009] FamCA 647 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Blissenden |
SOLICITOR FOR THE APPELLANT: | Blissenden Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr T. Fitzgerald with Ms M. Ryan |
| SOLICITOR FOR THE RESPONDENT: | Ms M. Ryan |
| COUNSEL FOR THE INEPENDENT CHILDREN’S LAWYER: | Mr P. Fitzgerald |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission Tasmania |
Orders
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.
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.
That the matter is remitted for re-hearing before a judge other than the Honourable Justice Benjamin.
That there be no order for costs in relation to the appeal.
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (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.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (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.
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) Act1981 (Cth).
IT IS NOTED that publication of this judgment under the pseudonym Maluka & Maluka approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT HOBART |
Appeal Number: SA 77 of 2009
File Number: HBC 733 of 2008
| Mr Maluka |
Appellant
And
| Ms Maluka |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Maluka (“the father”) against parenting orders made by Benjamin J on 24 July 2009 in proceedings between him and Ms Maluka (“the mother”).
The parenting orders are in respect of the parties’ two children, X, born in June 2001 and Y, born in June 2003 (“the children”). The children were aged 7½ and 5½ respectively at the date of the trial.
The trial Judge made orders, inter alia, that the mother have sole parental responsibility, the children live with her, she is permitted without notice to the father to change the children’s names and move from where they live to any place within Australia. A series of injunctions were made which restrained the father from having any contact with the children or the mother. These included him not coming within 500 metres of the mother and children’s home, the children’s school or any other place where they may be present. If the father breached the restraint order, provision was made for him to be arrested without warrant. Unless these orders are varied or set aside, the effect of the suite of orders made by his Honour is that the children will not see the father during their childhood.
The father does not seek to overturn all orders made by the trial Judge. He does not challenge those which gave the mother sole parental responsibility, the children live with her, the 500 metre boundary and restraint which prevents him approaching them at nominated locations or the order which, in the event of breach, enables him to be arrested without warrant. The focus of the father’s challenge relates to those orders which would impede his ability to spend time and communicate with the children at a children’s contact centre for two hours each fortnight pending further order.
Essentially, it is the father’s contention his Honour erred in relation to his assessment of the gravity of the risk of family violence if there was any time between the children and the father, in particular if the children only had supervised time with him at a contact centre. Allied to this challenge is the father’s contention his Honour erred in relation to his assessment of the nature of the children’s relationship with him.
The mother opposed the appeal and sought to maintain the trial Judge’s orders. The Independent Children’s Lawyer (“ICL”) agreed with the father in relation to a number of the challenges he made but nevertheless did not consider that such errors vitiated the decision.
Background facts
To give context to this appeal it is useful to record key components of the chronology of events. Primarily these are taken from the trial Judge’s reasons or are otherwise not the subject of challenge in this appeal.
The mother was then aged 37 years and the father aged 33 years.
The parties married in September 1999.
The parties resided in Western Australia during the early part of their relationship.
X was born in June 2001.
In September 2002, the father suffered an electric shock at work. The mother said that the father’s behaviour to her thereafter deteriorated.
In 2002 when pregnant with Y and X was about 16 months, the father slapped the mother across the face. The mother left for two to three days but returned after the father apologised.
Y was born in June 2003.
On Christmas Day 2003, the father hit the mother on the head five times and pulled her hair. This was the first time she contacted police and on their advice, she left and took Y with her. The father insisted X remained with him. The following day the mother returned to the father.
On a number of occasions in 2003 and 2004 the mother attended a medical centre where she gave a history of violence by the father towards her. Documents produced by the medical centre record the notations of the mother’s treating doctor: “hubby violence [sic], can’t leave though. fist into face. punch in the face. called the police, told to come here not provoked ... tenderness across [her] nasal bridge, also tender across left infraorbital area two finger mark bruises across right upper arm … does not want to leave him, afraid that she will be killed. He has promised to kill her. Discussed options open to her”. His Honour found the doctor’s observations corroborated the mother’s evidence about the father’s violence.
In 2005, the mother went to a women’s refuge where it was documented she was “… concerned [the father] may obtain one [a gun] and kill her as he has threatened to … [the mother] unsure of being at refuge but is scared to remain at her home, wants violence to stop”.
On about 27 January 2005, the father went to the home of a friend of the mother’s where he believed the mother was present. The father refused to leave and only did so after police arrived.
On 27 October 2005, the father “subjected [the mother] to a violent physical attack” whilst driving. This finding related to the mother’s evidence the father hit her in the face. With police assistance the mother left the home but later returned. This is the last time the father was physically violent to the mother according to his Honour.
On 1 October 2006, the parties’ home was attacked during which the father was confronted at the front door by a man who was known to the father. The man wielded an axe and wanted to fight him. In the belief the man would not hurt a child, the father picked Y up. This was a frightening incident in which fortunately no-one was physically hurt. There is no challenge to his Honour’s findings the father put his concerns for his own welfare and interests ahead of the need to protect his daughter.
Immediately after the incident described above the father left Western Australia for Tasmania where the mother and children joined him three months later.
In June 2007, a friend of the mother, Mrs L observed the father speak harshly to X and the child appeared frightened.
In early 2008, Mrs L heard the father, in a discussion about couples separating, say to the mother “[d]on’t think about it, and don’t think about leaving me”.
On 21 June 2008, the parties separated. The mother sought assistance from the police to leave the family home. The police put in place a Police Family Violence Order for the protection of the mother and children from the father (“PFVO”). This is an order made pursuant to the Family Violence Act 2004 (Tas). The father said the order was made without foundation.
On 17 July 2008, the mother commenced parenting proceedings in this Court. As final orders she sought that the children live with her and “… the question of the Respondent Father’s time with [the children] be reserved”. Included in her initiating application was an application for interim orders, which relevantly proposed:
·the children spend time with the father supervised at a contact centre;
·the appointment of an ICL;
·the father complete a “Changing Abusive Behaviour Program”; and
·the father undergo a psychiatric or psychological assessment.
When the mother commenced these proceedings, she filed a Notice of Child Abuse or Family Violence. There the mother provided details of behaviour by the father towards the children which she said satisfied the definition of “abuse” contained in s 4(1) of the Family Law Act 1975 (Cth) (“the Act”).
After separation, Mrs L and another friend of the mother, Ms N, sought restraint orders against the father. They claimed his behaviour concerned them. The behaviour complained of related to the father telephoning and approaching them for information about how he could contact the mother and seeking their help to contact her. The father denied his behaviour was such that orders were necessary. In August 2008, separate restraint orders were made for the protection of Mrs L and Ms N from the father.
On 8 August 2008, the father filed a response to the mother’s initiating application.
The father proposed he and the mother have equal shared parental responsibility for the children, and they live with her. He sought to spend time with the children each alternate weekend and overnight each Wednesday during school term, for one half of all school holidays, as well as nominated special occasions. He agreed the appointment of an ICL was appropriate and, sought interim orders to spend time with the children from after school Friday until the commencement of school Monday each alternate weekend, overnight each Wednesday and at other times in accordance with the parties’ agreement. Changeover would take place at the children’s school.
The competing applications for interim orders were determined on 11 August 2008 on which occasion interim orders were made by consent for the children to live with the mother. Arrangements for the children to spend time with the father remained contentious and it was ordered he spend supervised time with them at a contact centre each weekend or, if that could not be accommodated by the contact centre, each alternate weekend. As part of a package of orders in relation to the parties’ coming into contact with each other, the father was restrained from attending “… the Contact Centre or its vicinity before the time with the children is to start and shall promptly leave the Contact Centre and the vicinity when the time with the children is to end”.
Fortnightly supervised time for the children with the father commenced at a contact centre on 17 August 2008. This was the first time the children had seen him since the parties’ separation in June.
After interim orders were made for the children to spend time with the father at the contact centre the father was often in the vicinity of the contact centre before and after the children’s visits.
On 6 August 2008, the mother saw the father’s car parked five cars along across the street from where she was staying with Mr U (a friend of the parties and the mother’s current partner). When the mother ran back to the home, the father ran after her. He banged on the door and “created a scene”. Police were called.
On 7 August 2008, the father was charged with breach of the Family Violence Order made for the mother’s protection. This related to the father’s approach to her the day before during which it was alleged he “knocked on the front door of a residence [he] knew her to be frequenting at the time”. By then the PVFO had been supplanted by an interim Family Violence Order made under the same legislation. He pleaded guilty on 5 September 2008 to a breach of that order. The offence was established but no conviction recorded. Upon the father entering an undertaking to be of good behaviour final disposition of the charge was adjourned for 12 months.
In August/September 2008, the father telephoned Mr U and described what the mother had been wearing. Mr U received a large number of telephone calls and messages from the father in which he enquired about the mother and tried to persuade him to help the father speak to or meet with her.
The children last spent time with the father at the contact centre on 7 December 2008. They have not seen him since.
On 19 December 2008, the father was charged with a further breach of the interim Family Violence Order made for the mother’s protection. In relation to the breach charge it was alleged “between 03/07/2008 and 12/12/2008 at various location [the father] contravened the said [interim Family Violence Order], in that [the father] stalked [the mother]; [the father] approached [the mother] directly on [P] Road on the 12/12/2008 stating “You start doing as I say” and then you made a threatening gesture towards her by drawing your hand across your throat”. The same day the father was charged with stalking the mother between 22 June 2008 and 12 December 2008 with the intention of causing her fear. The father denied behaving in the manner alleged.
On 5 January 2009, police informed the mother that Mr J, who is acquainted with the father and Mr U, notified them that the father told him he planned to kill her. Police immediately removed her and the children to a place of safety. So that it is clear, the police took the mother and children to a refuge where they remained until the father was remanded in custody.
On 8 January 2009, the father was charged with a further breach of the interim Family Violence Order and breaching conditions of his bail. These charges related to the threat reported by Mr J. The father was remanded in custody where he remained until released on bail on 7 April 2009. The father denied behaving in the manner alleged.
On 16 January 2009, the mother filed an application for interim orders in which she sought to discharge those orders made 11 August 2008 which enabled the father to spend time with the children. The mother also applied for interim orders which would enable her to move the children interstate, change their surname and restrain the father from spending time or communicating with them. At the same time, a second Notice of Child Abuse or Family Violence was filed. This related to the threat reported by Mr J.
On 6 February 2009, the father filed a response to the mother’s application for interim orders. Simply put, he sought that her interim application be dismissed.
The competing applications for interim orders were abandoned and the applications for final orders were listed for hearing to commence on 30 March 2009.
On 12 March 2009, the mother filed a third Notice of Child Abuse or Family Violence. This related to allegations she made about the father’s behaviour towards Y in June 2008, which she intimated raised the spectre the father may have sexually abused the child. His Honour was not satisfied the father sexually abused the child. Rather, the child hid because he smacked her. This is the last occasion in relation to which it is alleged the father physically hurt one of the children.
The final hearing commenced before the trial Judge on 30 March 2009 for nine days. On 8 May2009 the trial Judge reserved his decision.
The Associate to the trial Judge wrote to the parties’ solicitors and ICL on 10 June 2009. The Associate referred to “published material on domestic violence”, copies of which were enclosed. The lawyers were advised the trial Judge “wishes to have regard to this material” and invited submissions as to “whether His Honour is entitled to have regard to such material and/or what regard (if any) he should have ...”. Written submissions were invited by 19 June 2009, and an opportunity to supplement written submissions with oral argument on 22 June 2009 was provided.
The hearing resumed on 22 June 2009 in relation to the trial Judge’s mooted consideration of the publications referred to in his Associate’s letter. Judgment was reserved.
Judgment was delivered and orders made on 24 July 2009. To the extent necessary his Honour’s reasons for his orders will be explained in the context of our discussion of the grounds of appeal.
The grounds of appeal
In his Amended Notice of Appeal filed 21 January 2010, the father relied on nine grounds of appeal, which are summarised as follows:
·The father asserted that the trial Judge erred by not making an order under s 69ZT(3) of the Act to apply the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) regarding tendency and coincidence evidence. (Ground 1)
·In the alternative to Ground 1, the father asserted that the trial Judge erred in making factual findings in relation to the father’s stalking and terrorising of the mother that were not supported on the evidence, or were supported by tendency and coincidence evidence. In particular the father asserted that the finding that “the father and another man were … observed to walk up to the car of the mother’s partner … and a tyre [on that car] was slashed” was not open to his Honour on the evidence, and that the evidence relied upon did not display an “‘underlying utility’, ‘system’ or ‘unusual feature’ or such other similarity so as to make the evidence sufficiently probative as to the issue of whether or not the Father was the perpetrator”. (Ground 2)
·In the alternative to Ground 1, the father asserted that the trial Judge erred in finding that the father was “instrumental or at least involved in the attendance of strangers at the mother’s home on Christmas Day 2008” as that evidence did not display an “‘underlying utility’, ‘system’ or ‘unusual feature’ or such other similarity so as to make the evidence sufficiently probative”. (Ground 3)
·The father asserted that the trial Judge denied him procedural fairness by taking into account published social science material and failing to disclose what part of the material, for what purpose and in what respect his Honour proposed to take the identified material into account in reaching his decision. (Ground 4)
·The father asserted that the trial Judge erred in law by using the social science material as further evidence of the likelihood of the continuation of the violence perpetrated or instigated by the father. (Ground 5)
·In the alternative to Ground 5, the father asserted that the trial Judge failed to provide adequate reasons as to how the social science material provided the Court with further evidence of the likelihood of the continuation of the violence. (Ground 6)
·The father asserted that the trial Judge failed to give adequate reasons as to why he was satisfied on the balance of the evidence of Mr J that the father made a threat to kill the mother during a conversation between the father and Mr J on or about 3 January 2009. (Ground 7)
·The father asserted that the trial Judge failed to give adequate consideration to s 60CC(2)(a) of the Act. The father asserted that the trial Judge’s finding that no meaningful relationship existed between the father and the children was not supported by the evidence and was contrary to inferences that could be drawn from uncontested reported observations of the children and the father at the Contact Centre, and was arrived at without taking into consideration unchallenged evidence. (Ground 8)
·The father asserted that the trial Judge erred in the consideration of s 60CC(2)(b) of the Act by giving no or inadequate consideration to the making of a supervised time order, or alternatively, in failing to find that the circumstances justified the making of such an order. (Ground 9)
Discussion
As will become apparent, we agree with the father’s contention that the trial Judge erred in a number of respects. Relevantly, he misunderstood the orders sought by the father and overlooked that the father sought supervised not unsupervised time with the children. On the father’s proposed orders he would be required to file another application before he might have unsupervised time. It was in this context that his Honour needed to assess both the risk of future violence or harm and the future of the children’s relationship with the father. While the assessment of the nature of children’s relationships with a parent always requires careful analysis, because in this case a party sought to terminate that relationship, it was particularly important for his Honour to carefully consider the evidence which pointed to the positive as well as negative elements of the children’s relationships with the father. Unless this task was thoroughly undertaken, his Honour was unable to balance any risk of harm to the children and the mother with the possible benefits to the children of maintaining, in a supervised setting, a possibly meaningful relationship with the father. Although it is Ground 9 which counsel for the father says constitutes the gravamen of this appeal, the significance of the earlier grounds is that these asserted errors resulted in his Honour undertaking the final balancing exercise erroneously. In other words, it is said, that errors established in accordance with the earlier grounds tainted the manner in which his Honour conducted his final analysis.
A number of the grounds of appeal are connected and were addressed cumulatively. We will adopt a similar approach.
The children’s relationship with the father and supervised visits
Grounds 8 and 9 are connected. Ground 8 challenges the trial Judge’s findings in relation to the nature of the children’s relationship with the father and his treatment of the evidence about the children’s enjoyment when they spent time with him at the contact centre, in particular, his Honour’s finding at paragraph 413:
… the broader evidence, discussed earlier (including the evidence of Dr [F]) establishes that the children are at best ambivalent about seeing their father and are fearful of him. The evidence of Dr [F] is that the observations at the contact centre, whilst accurate, do not reflect the true feelings and concerns of these children.
Ground 9 relates to the manner in which his Honour assessed (or perhaps more accurately, did not assess) s 60CC(2)(b) risk considerations in the context of the father’s application for a supervised time order.
Both Grounds 8 and 9 need to be considered against the background of the provisions of s 60CC(1) and (2) which (omitting the note) are as follows:
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
All parties agree that his Honour misstated the nature of the orders sought by the father and that when his Honour evaluated the magnitude of the risk of harm to the mother and children involved in the father’s application, this was undertaken on a wrong footing. That is, his Honour conducted his risk assessment on the basis that the father sought unsupervised time with the children and not in the context of seeing them at a contact centre (at least until a Court exercising jurisdiction under the Act decided differently). Consequently, his Honour, it is said, failed to appreciate the significance of the children’s positive interaction with the father at the contact centre and undervalued the benefits to the children of being able to maintain an observed happy relationship with him in a setting where they were safe.
There is no doubt that his Honour did not discuss the possible benefits to the children of being able to continue to spend time with the father at a contact centre. At its highest, his discussion about supervision occurred at paragraph 132 where he said: “[t]he children are at the risk of seeing, hearing and being exposed to violence in the unsupervised care of the father and perhaps at times in the supervised care of the father”. Whether his Honour was there referring to a contact centre or supervision by, for example, a friend, we cannot discern. In the absence of discussion by his Honour of the basis on which he considered the children were perhaps at risk even when supervised, we cannot be confident his Honour turned his mind to supervision at a contact centre. Our view in this regard is reinforced by his Honour’s misstatement that the father sought unsupervised time with the children and his failure elsewhere to evaluate the risks and possible benefits associated with time at a contact centre.
There is no challenge made to his Honour’s discussion of the meaning of s 60CC(2)(a). There, his Honour discussed the words “meaningful relationship” and adopted the description applied by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at 519. Brown J described the words as meaning a “relationship or a meaningful involvement … which is important, significant and valuable to the child”. We observe that in McCall v Clark (2009) FLC 93-405 the Full Court accepted this description. Their Honours also said, as did his Honour, that the preferred approach to s 60CC(2)(a) is for the Court to consider the prospective benefit to the child of a meaningful or significant relationship with his or her parent.
Before the trial Judge, the ICL submitted in favour of the children spending supervised time with the father. It was argued weight should be placed upon the positive interaction observed between them at the contact centre and a cautious approach taken to the evidence of the expert psychologist, Dr F, about the nature of the children’s relationships with the father. As to the later, it was correctly pointed out that Dr F had been ordered to investigate and report upon two matters only. These were the impact of the alleged family violence on the mother’s parenting capacity and to assess the veracity of an allegation the father sexually assaulted Y along with the effect this allegation had on the father’s relationship with the children. In other words, a broader analysis of the nature of the children’s relationship with the father did not come within the scope of Dr F’s investigations. Nevertheless, it was submitted to his Honour there was, on balance, “evidence of the children having a meaningful relationship with their father”. Consistent with the approach adopted below, before us the ICL said on this issue that Dr F’s evidence lacked cogency and that it “must have been critical” to the factual foundation of his Honour’s findings that there was not a prospect of a meaningful relationship between the children and the father.
Counsel for the father focussed upon observations of the father and children at the contact centre. The contact centre’s notes of these visits and a report were provided to the trial Judge.
We accept that the contact centre’s notes and report are replete with displays of pleasant and affectionate exchanges between the children and the father. This included free-flowing and spontaneous conversation, happy play and the children wanting to be physically close to him. Y indicated she would like to have visits away from the contact centre and told the father she loved him. On their last visit at the end, both children waited on the balcony so that they could wave to the father when he drove past. The contact supervisor reported the children said they felt sad he was gone.
Before the trial Judge, both counsel for the father and counsel for the ICL sought to persuade him to accept that the material from the contact centre demonstrated the children had a meaningful relationship with the father. These submissions were not accepted by his Honour with the reasoning process for that conclusion reached by him at paragraph 413, having been earlier set out and being as follows:
72.… From the evidence of Dr [F] it could be that such enjoyment was what it was, children enjoying time with their father or alternatively it could be that the children were conditioned to present that enjoyment as a façade.
73.As to why the children still displayed affection to the father, the mother believes that the children had been taught to display affection to the father even after he had been abusive to them. She gave a number of examples including one where the father had humiliated [X] at Christmas 2007 in an appalling way and when the child still went and cuddled and kissed her father goodnight. She said that the father’s emotional abuse of the children and physical and emotional abuse of her was a pattern of conduct and I accept her evidence in that regard.
74.Having regard to this evidence, the findings about the father’s abusive and violent behaviour to the mother and children and the evidence of the supposed enjoyment by the children of their time with the father at the Contact Centre is more likely to be a façade rather than real.
…
127.… [Y] recalls being scared and hiding from her father and that his behaviour at the Contact Centre was not the same as normal. [Y] said she “would choose not to see her father, even if someone was present” and looking after her and making sure that the father would not become angry.
128.… [X], like [Y], also recalled the father being an angry person and using the “F” word when he was angry. She also said that her father could be “mean and nasty” and she did not feel comfortable seeing her father at the Contact Centre. She said her father’s behaviour at the Contact Centre was not consistent to the way he “usually behaves when not at the Contact Centre”.
129.I take it, from this evidence, that the views of the children were that whilst the father behaves himself at the Contact Centre that was not how he normally behaved himself and that the children had no pressing desire to see him bearing in mind the regime of abuse of which they have been forced to suffer for most of their lives to date.
130.Dr [F] gave evidence that the children have learnt to show the father affection and act in an apparent loving way as a defence mechanism. Dr [F’s] reported that this was not unusual in children who have been victims of verbal intimidation and abuse.
…
332.The report from [the Contact Centre] shows that the children seem to enjoy their time with the father. They did this in the context of a safe environment. I am satisfied that the reporting of the [Contact Centre] was accurate but as I have said earlier in having regard to the evidence of Dr [F] I am not convinced that the children’s behaviour reflects the real feelings and views of the children. I prefer the views that were elicited from Dr [F] and set out in her report. That is that the children are frightened of the father.
333.Counsel for the father argued, as did the Independent Children’s Lawyer, that great weight ought to be given to the reports from the contact centre. I have given some weight to it but it must be seen in the context of the whole of the factual basis of the relationship that existed between the parties and the evidence of Dr [F].
334.The mother gave evidence, which was supported by both Mr [U] and Mr [D] is that the children, in particular [X] are scared of the father. I am satisfied that this is and remains the case.
…
In paragraphs 413 and 414, his Honour then concluded:
413.I do not adopt that submission as the broader evidence, discussed earlier (including the evidence of Dr [F]) establishes that the children are at best ambivalent about seeing their father and are fearful of him. The evidence of Dr [F] is that the observations at the contact centre, whilst accurate, do not reflect the true feelings and concerns of these children.
414.Dr [F] described the behaviour demonstrated by the children towards their father at the [contact centre] as possibly being learned. Dr [F’s] evidence was that it was not unusual for children who have been the victims of verbal intimidation and abuse to exhibit such behaviour. I accept Dr [F’s] evidence. (footnotes omitted)
There is no challenge that Dr F accurately reported upon the children’s discussions with her. Or that his Honour accurately recorded her evidence of the children’s negative statements to her about the father.
However, Dr F did not make the remarks his Honour attributed to her in paragraph 413, being that the positive interactions with the father displayed at the contact centre “do not reflect the true feelings and concerns of these children”. While she spoke about this as a hypothetical possibility and a dynamic with which she had some experience, she did not go on to say this was the situation with these children.
In relation to his Honour’s findings, at paragraph 130, Dr F did not give evidence “that the children have learnt to show the father affection and act in an apparent loving way as a defence mechanism”.
Under questioning from counsel for the ICL, Dr F said:
… Yes, but children have a strong emotional bond to very abusive parents. (Transcript, 30 March 2009, p 64)
When asked what she meant by the phrase “very abusive parents”, Dr F said:
… I mean parents who would physically assault their children. The children can still respond to their parents in a loving way and respond to them as a much loved parent. (Transcript, 30 March 2009, p 64)
Dr F went on to say:
… I mean it’s my experience, as I said, and I’m not suggesting that [X] and [Y] are abused in - have been abused in this way, but even with very badly abused children over long periods of time they can maintain strong contact and a strong association or attachment with a parent who is the perpetrator of that abuse … (our emphasis) (Transcript, 30 March 2009, p 64)
After referring again to the positive observations made by the contact centre staff which, according to counsel for the ICL suggested that the children and father had an appropriate relationship and “the father was a loving father”, Dr F responded:
That piece of information is that the children have an attachment to their father and they enjoy seeing him. (Transcript, 30 March 2009, p 64)
Dr F did not agree this meant the children’s relationship with the father was loving or that their behaviour at the contact centre was inconsistent with them having been harmed or that they would not be harmed by exposure to violence. She agreed that in the contact centre setting the children were not hyper-vigilant about their circumstances or concerned for their safety.
During his cross-examination of Dr F, counsel for the father asked her to reconcile the children’s views expressed to her against seeing the father with their behaviour at the contact centre, which she agreed reflected positive interaction, with him. These questions were predicated upon Dr F’s acknowledgement that the children had not seen the father between 7 December 2008 and her interview with them on 22 March 2009. The significance of this was that within about three months the children’s views appeared to have changed from being happy with the father at the contact centre to a stated desire they were not comfortable there and a preference to not see him. Because Dr F did not see the children with the father, it was suggested observations of the children’s happy interaction with him were more likely to reflect their unguarded views, rather than those expressed in an interview following a period during which they were exposed to the mother’s and Mr U’s negative opinions about the father and without the moderating influence of contact with him.
Dr F said:
… I think initially that the children would have missed their father and enjoyed spending time with him. There has been a period of time now where things have been relatively settled for them. Those children enjoy their current life situation, that they talked about things being very nice at home and that it’s a loving and fun-filled house, and that that may influence the way they view it and their desire to return to something that wasn’t as satisfactory for them. Both children reported being unhappy spending considerable time at the parents’ place of work. So in comparison things may be better and therefore they’re more rejecting of anything, I guess, that reminds them of that previous existence. That’s one explanation, coupled with the fact that they can clearly recall their father being angry and grumpy, as they described it, much of the time. Their views may be a function of the fact that things are considerably better for them now, in their opinion, than they were before. The – I mean, it’s – the situation in the children’s home, even if it wasn’t satisfactory, children don’t necessarily view their parents as maltreating or abusive in any way. Even children are seriously maltreated won’t necessarily view their parents as maltreating, so they can love a parent and enjoy being in that parent’s company even if the circumstances are not what anybody else would consider to be appropriate. So they have an attachment to their father, and that was demonstrated in their visit. I have no argument with the fact that they had a nice time when they saw their father. (Transcript, 30 March 2009, p 50)
Dr F referred on a number of occasions to the importance to the father that he was in control. Counsel for the father asked whether Dr F would “agree with me that at the contact centre he was most definitely not in control of the situation?” She replied:
The situation was supervised, as my understanding of it, so there were rules set in place about his behaviour. It doesn’t follow that he felt out of control in the situation, that he was still able to interact with his children. (Transcript, 30 March 2009, p 52)
The following exchange then took place between counsel for the father and Dr F:
Yes, but he couldn’t take them where he wanted to or speak with them as he wished to?---No. That’s apparent, yes.
Would that not, given your assessment of [the father], be something that he might struggle with?---It depends on the way he viewed it. If he viewed it as a positive experience then he would not have difficulty with it. A person who has a preference to be in control wouldn’t necessarily view every situation where his control couldn’t be exerted as a necessarily negative experience for him.
So we can draw nothing from the fact, is it, that he appears on the face of that report to have behaved quite appropriately at the contact centre?---I would say that it was a good thing that he was able to demonstrate that he could spend good quality time with his children when he was under supervision. (Transcript, 30 March 2009, pp 52-53)
We agree with counsel for the father that his Honour’s findings in relation to whether the children have or could benefit from a meaningful relationship with the father are predicated upon mistaken factual findings. These errors are significant and resulted in his Honour misdirecting himself when he came to formulate his findings in relation to s 60CC(2)(a). Thus, Ground 8 is established.
This error in relation to s 60CC(2)(a) was compounded when his Honour failed to acknowledge and evaluate the father’s application for supervised time at a contact centre. As we said earlier, this resulted in his Honour undertaking his risk assessment on a wrong footing.
Had his Honour considered the contact centre proposal, he would have paid closer and appropriate attention to the following matters:
·The full extent of the positive interaction between the children and the father which continued at the contact centre for some months.
·When the children last saw the father they ran to wave goodbye after he departed and told the contact centre worker they felt sad he was gone.
·The father’s willingness to spend time with the children at a contact centre.
·The father was cooperative with contact centre staff while spending time with the children.
·Dr F’s evidence that notwithstanding her view the father was controlling, if he viewed the contact centre experience positively then he would have no difficulty with it.
·Dr F’s evidence the positive interactions observed at the contact centre demonstrated the children had a nice time with the father there and enjoyed seeing him.
·Dr F’s evidence the father was able to spend good quality time with the children under supervision at a contact centre.
·Dr F’s evidence that in the contact centre setting the children were not hyper-vigilant about their circumstances or concerned for their safety.
In the context of a supervised time application the matters listed in the above paragraph were all weighty considerations which his Honour was required to consider. Ground 9 is thus established.
His Honour’s findings at paragraphs 415 and 416 that even if the children have a meaningful relationship with the father, the risk of harm meant that the “detriments flowing from that relationship were far greater and will be far greater than the benefits flowing from the relationship” do not overcome the effect of the errors. This is because, as we will shortly conclude, the basis upon which his Honour found the father would continue to be violent was erroneous.
We draw attention here to two further errors by his Honour relied on by the father in this context.
At paragraph 58, his Honour accepted evidence given by Ms N about the father’s abusive behaviour towards her at a party and his use of foul language. His Honour was satisfied “this is indicative of the type of behaviour the father engages in when he becomes upset”. Ms N was not a witness and did not give evidence. His Honour erred in indicating that she did.
At paragraph 146, his Honour accepted evidence given by Mr U that to him the father “says that he ‘wants to get rid of her’”. Mr U did not give this evidence and his Honour’s finding that he did is erroneous.
Along with a raft of other matters, it was submitted by counsel for the father these errors only increased the need for his Honour to give proper consideration to the option of supervised time and thus provide a proportionate response to preservation of the children’s relationship with the father balanced with the risk of harm factor. We agree with that submission.
As already indicated Grounds 8 and 9 are thus established.
Use of social science material
Grounds 4 to 6 inclusive challenge the use by the trial Judge of social science material. This comprised three articles published in the Family Court Review Vol 46 No 3 July 2008. The articles are identified in a letter from the trial Judge’s Associate to the parties’ lawyers and ICL on 10 June 2009 and at paragraph 373 of the trial Judge’s reasons. They relate to family violence and parenting arrangements. Essentially these grounds were argued on the basis of lack of procedural fairness and failure to provide reasons in relation to the use of the material.
As mentioned earlier, his Honour invited submissions about what use, if any, he could make of this material. In the course of hearing those submissions his Honour said:
… I can do as I have done in this case and say, “Look, here it is. In terms of my knowledge of domestic violence, this adds to my general knowledge of domestic violence and how it operates.” I still have to make findings, don’t I, in terms of your client. But isn’t it a common knowledge type matter? (Transcript, 22 June 2009, p 3)
Counsel for the father responded:
… As I have said there can be absolutely no objection to your Honour adding to your Honour’s knowledge of that particular issue or concern, but it doesn’t entitled [sic] your Honour to either, on the basis of that material, make a finding against - sorry, not against anyone – with respect to domestic violence. That has to be made on the basis of the evidence before you … (Transcript, 22 June 2009, p 3)
His Honour then said:
… Aren’t I entitled, though, to have regard if I make findings of fact and say, “Here are the findings of fact which these papers can’t assist me and make that findings of fact, but once I have made the findings of fact aren’t I then able to say, if I choose to, that these findings of fact are such that I can conclude that in accordance with some writings of learned authors, that this amounts to coercive domestic violence?” (Transcript, 22 June 2009, p 4)
Discussion continued during which his Honour explained that he contemplated applying to the facts, definitions used in the material, namely, “coercive intimate violence” and “reactive violence”. Counsel for the father invited his Honour to articulate how categorisation of family violence typology in accordance with the systems adopted by the various authors would influence his decision. His Honour repeated his earlier observations that there appeared to be two types of violence alleged in this case, namely “coercive intimate violence” and “reactive violence”. His Honour then said:
It just seems to me that that is the context in which I would be using those papers. But I wouldn’t be limiting myself as broadly and, hence, the matter has been re-listed. (Transcript, 22 June 2009, p 5)
Although it is not entirely clear what his Honour there intended to convey, it is tolerably clear he said he would not be limited to merely categorising family violence typology.
Counsel for the ICL then addressed his Honour. Reference was made to s 144 of the Evidence Act as the guiding provision in relation to this issue. Section 144 of the Evidence Act provides:
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) 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 prejudiced.
Repeatedly counsel for the ICL counselled caution in relation to the trial Judge’s proposed use of the social science material. It was his submission that the trial Judge could use the material in aid of his own general learning in relation to which he submitted “but that is the extent of it”. It was strongly argued this social science material could not constitute “common knowledge” about the impact of family violence.
With these submissions counsel for the mother agreed. She went on to say:
… Now, your Honour, my concern with respect to that is there has been nine days of evidence and submissions, and there is more than enough evidence, in my submission, for you to make a finding as to whether these things [that is acts of violence by the father] have occurred.
… In my submission this article is a tick a box: if this, then that; then that. Now, that is my major concern with respect to this article. But if your Honour was still minded to take it into account, naturally there is four learned authors ---
HIS HONOUR: I can’t --- I can’t diagnose that, though, can I?
(Transcript, 22 June 2009 pp 11-12)
Counsel for the mother agreed with the trial Judge that he could not “diagnose” which we understand to mean: determine by reference to the material, the impact of the violent conduct as found by his Honour on this mother and these children. Counsel for the mother went on to submit that if the trial Judge sought further input into the evidence in relation to family violence he should make factual findings and, if still troubled about matters, such as the likely effect of that violence, it was open to his Honour to recall Dr F to supplement the expert evidence already given by her.
Thus it will be seen there was no enthusiasm from any party for his Honour to have regard to the social science material. All counsel were content with the state of the evidence and none sought to recall Dr F. They were agreed the material did not constitute “common knowledge”. Each impressed upon his Honour the need to be cautious and mindful of the constraints imposed by s 144 of the Evidence Act.
Turning then to his Honour’s reasons, in relation to how this material was to be used in reaching his decision, the trial Judge made the following comments:
381.Common knowledge is at the end of the day evidence. Facts that come before the court such as expert reports are evidence. If learned papers are before a court they must form part of the body of evidence. It is not a separate category of its own, however, the way such evidence is being applied and the weight given to it are the fundamental considerations.
382.In this case the material provided by the learned authors (whose expertise was accepted by counsel for all parties as being of a high level) cannot be used to establish whether the father did or did not commit the acts of violence, abuse, intimidation or the like to the mother and to the children.
383. Such material cannot generally be used to determine the particular impact of particular violence upon the mother and/or the children, that was more a matter for Dr [F]. She interviewed the parties and saw and interviewed the children. However, such papers can be used to categorise the nature of the violence and provide a clearer understanding of the overall nature of that violence and to give context to the behaviour and its impact on the mother and the children.
384.The court can come to a conclusion (as it has in this case) that the father has engaged in violent, controlling and abusive behaviour in the past both, prior to and subsequent to separation. The father has either denied, minimised or endeavoured to trivialise those complaints. The court is entitled to determine (as it does in this case) that the past history of the father is indicative of his future behaviour and make findings, as it does, that the children and the mother are at unacceptable risk of both physical, emotional and psychological injury into the future.
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 prejudiced
Only 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.
The importance of notice and procedural fairness was emphasised by this Court in Lamereaux & Noirot (2008) FLC 93-364. We agree where reliance is placed by a judge on evidence other than evidence regularly adduced by the parties to the litigation, procedural fairness issues are particularly significant.
Before us, counsel for the ICL agreed the trial Judge erred in relation to his use of the social science material. It was submitted that while his Honour gave notice of the material he intended to use, there is substance in the father’s complaint about lack of notice of how that material might be and ultimately was used. It was submitted his Honour clearly used the material as evidence of a fact in issue (namely the risk of continuation of violence by the father). According to the ICL, in both respects his Honour erred. In relation to this issue, counsel for the mother submitted it would have been tedious and probably impossible for his Honour to point to the specific pages in the material he wished to take account of. We understand the gravamen of this submission to be that in this case there was so much extrinsic material it would have been difficult for his Honour to specify matters of common knowledge and too time consuming to do so.
His Honour’s remarks, at paragraph 381, reveal that he treated this social science material as “common knowledge”. In order to be “common knowledge” the social science material needed to comprise material “that is not reasonably open to question” (s 144(1) of the Evidence Act). It will be recalled his Honour relied upon a number of articles, which together traverse many matters. Nowhere in his Honour’s reasons did he disclose the matters of common knowledge which he took from this material, nor did he identify beforehand the manner in which he proposed to use the material beyond categorisation.
In our view, where there is extrinsic material sought to be introduced, the notice provisions in s 144 of the Evidence Act require greater clarity than his Honour offered these parties. We agree with the father and the ICL that the use of the social science material to constitute “further evidence” of the likelihood of future violence, which his Honour found the father had previously perpetrated towards the mother and children, was erroneous. This was not the use to which his Honour postulated the material would be put, and as a consequence, the notice provisions in s 144(4) of the Evidence Act were inadequately addressed. In this case procedural fairness required more from his Honour than merely giving the parties copies of the material and then, in response to counsel’s legitimate enquiries about the use his Honour would make of it, a response that he would not “be limiting (to categorisation) myself as broadly”, whatever those words mean. In circumstances where there was no support for the notion that the material constituted “common knowledge” and all counsel sought greater clarity from his Honour about the use to which this material might be put, it was necessary for his Honour to be more precise.
We also agree with counsel for the father and the ICL that the forensically sensitive nature of his Honour’s use of the material required him to provide clear reasons as to how it influenced his reasons for judgment, both in relation to weight and the formulation of specific findings. We do not agree with the contention made on the mother’s behalf that his Honour did no more than use the material to categorise the father’s violence or that his factual findings guided his use of the material. This submission does not grapple with the use which his Honour unambiguously said, at paragraph 385, he made of the social science material. It is with regret we observe that nowhere in his Honour reasons does he explain how.
Accordingly, we find Grounds 4 to 6 are established.
Conclusion in relation to grounds so far considered
On the basis of the father’s grounds of appeal so far considered, we have found errors of such a nature that the appeal must be allowed, and the matter remitted for re-hearing. In these circumstances it is perhaps strictly unnecessary for us to consider the remaining grounds of appeal. However, we propose to consider them, if only briefly, because although they might not of themselves necessarily require the appeal to be allowed, they raise matters which demonstrate that we could not re-determine the matter for ourselves on the basis of what might be said to be unchallenged findings of fact. We consider also that it might be useful if we address the matters raised by Ground 1.
Section 69ZT FLA and the Evidence Act
Grounds 1 to 3 relate to the trial Judge’s decision not to order, pursuant to s 69ZT(3) of the Act, that the provisions of s 97 and s 98 of the Evidence Act regarding tendency and coincidence evidence should apply and challenge what is said to be unsafe findings as to tendency and coincidence (which are the subject of those provisions of the Evidence Act).
Section 69ZT of the Act provides:
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character). (our emphasis)
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(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.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Sections 97 and 98 of the Evidence Act provide as follows (omitting notes):
Section 97 – The Tendency Rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Paragraph (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.
Section 98 – The Coincidence Rule
(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
(2) Paragraph (1)(a) does not apply if:
(a) the evidence is adduced in accordance with any directions made by the court under section 100; or
(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.
At the commencement of the final hearing before the trial Judge, both parties’ and the ICL invited his Honour to rule pursuant to s 69ZT(3) of the Act to apply all those provisions of the Evidence Act, which s 69ZT(1) excluded. It was submitted that the trial Judge should adopt a global approach so that in relation to the admission of evidence for all issues under consideration, the exemption in s 69ZT(1) would not apply.
Discussion ensued about the nature of the issues which would require consideration. His Honour clarified whether, in relation to an incident in June 2008 with Y, it would be argued he should make a positive finding the father sexually abused the child. His Honour was informed that the possibility that the child may have been sexually abused by the father did not comprise a major plank of the mother’s case and the risk issues related to the father’s violence.
The trial Judge then expressed a preference for s 69ZT(3) considerations to be addressed on an issue by issue basis. Counsel for the ICL, acknowledged the sub-section accommodated issue by issue application. The trial Judge then said:
That was my reading of the section so I would prefer to do it on an item by item as they come up.
After his Honour expressed his preferred approach, counsel for the ICL agreed and no opposition was raised by the parties’ counsel to the hearing being conducted in that fashion. Before us, it was conceded that the effect of the interchange was that the parties agreed that the hearing would be conducted in accordance with the trial Judge’s expressed preference.
Thereafter, other than an issue unrelated to tendency and coincidence, during the evidence taking phase there was no application for a s 69ZT(3) ruling.
Section 69ZT(3) next arose during closing addresses. After counsel for the father said aspects of the evidence about the father’s conduct were “pure innuendo”, the trial Judge referred to evidence about the tyres on Mr U’s car being slashed in November and December 2008 and damage to the mother’s car. On one version of his evidence, Mr U said he saw the father near his car after which he discovered its tyres were slashed, on one of two occasions this occurred. The trial Judge asked counsel for the father whether it was open to him to “properly infer that it was likely that [the father] slashed the tyre or cause[d] the tyre [to be] slashed on the other instances …”. Counsel for the father responded that it appeared the trial Judge was here referring to “tendency evidence, or a propensity to act in a particular way”.
The trial Judge then invited further submissions. The effect of these was, at the end of the hearing the trial Judge was asked to apply s 69ZT(3) of the Act “to this issue of tendency evidence”. In support of the application of s 69ZT(3) counsel for the father acknowledged that the application of the sub-section is discretionary and said “[i]t’s my submission that in a case such as this and in relation to allegations such as this” the provisions of s 97 of the Evidence Act should apply. Reference to the type of case was one where the Court was asked to terminate a child’s relationship with his or her parent. Reference to allegations was to material which had been admitted and would potentially enable the Court to find the father was involved or responsible for other damage to the mother and Mr U’s cars even absent direct observations, and for an incident on Christmas Day 2008.
Counsel for the ICL broadly adopted the submissions on this issue made by counsel for the father. The only difference related to the relevance of the requirement of notice in s 97(1)(a) of the Evidence Act. It was submitted by counsel for the ICL, that in the unusual circumstances of this case (where the issue arose during closing addresses), notice had been given by affidavit which had been admitted into evidence. In addition, “the case has very much been run on the basis that the father has this propensity …”. Reference to propensity was to the father stalking and, inter alia, threatening the mother.
The trial Judge’s reasons for refusing to apply s 69ZT(3) of the Act are contained in paragraphs 260 and 261 which are set out below:
260.I decline to apply the provision of s 97 of the Evidence Act. What I will do is admit evidence that is relevant and probative. In doing so I will endeavour to ensure that each party and the children are accorded natural justice and procedural fairness. In giving reasons I will endeavour to set our clearly and illuminate the basis upon which I make findings of fact.
261.In the subject application it is open for me to determine that one or more of the excluded provisions of the Evidence Act applies. The father needed to establish that there were special circumstances upon which such determination should be based. On the material before me the only special circumstance is that there was a prospect that the father would be physically removed from the children’s lives. That is of course a very significant thing, but what is implicit in such an argument is that the concerns of the father in terms of the evidence as to his behaviour ought to be raised to a greater level potentially leaving the children exposed to family violence or abuse. However, as I have said the strict application of s 97 would serve no purpose. Accordingly in respect of this application in this particular factual scenario and with this family I find there are no special circumstances to apply the section.
Although s 69ZT(3)(a) of the Act refers to “exceptional” circumstances his Honour referred to “special” circumstances. However, we are satisfied that the trial Judge required the father to meet an equivalent threshold standard for the application of the sub-section. His Honour then considered the probative value of the evidence and was satisfied it was sufficiently probative to be admitted or more correctly, having been admitted, to not, at the end of the hearing, be excluded by the joint operation of s 69ZT(3) of the Act and s 97 of the Evidence Act.
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.
The Full Court decisions 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. Application of the sub-section is discussed in terms of its application to issues, and not the entire hearing, although the later course is permissible.
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.
We have already quoted paragraphs 260 and 261 of the trial Judge’s reasons. In paragraph 261, his Honour described the mother’s application to terminate the children’s relationship with the father as a “special” circumstance but not when considered in the context of the risk assessment of family violence and abuse. Although this threshold matter may have been decided differently, we see no error in the manner in which his Honour balanced these relevant considerations and decided the circumstances were not exceptional.
We find no merit in Ground 1.
Ground 2 challenges his Honour’s finding that in the company of another person, the father was involved on 15 December 2008 in an attack on Mr U’s car where a tyre was slashed. According to the father, if this finding was not open to the trial Judge, his inferential findings that the father was involved in other incidents in which the mother’s and Mr U’s cars were damaged were also unavailable. Ground 3 challenges his Honour’s finding the father was instrumental, or at least involved, in the attendance of strangers at the mother’s home on Christmas Day 2008. Again, the contention is that the evidence relied upon by the trial Judge to reach this conclusion did not display sufficient similarity so as to make the evidence sufficiently probative as to whether the father was involved.
Section 69ZT has changed the law in relation to aspects of evidence in child related proceedings. Rather than this type of evidence only being admitted in exceptional circumstances, in child related proceedings evidence of this type will now only be excluded in exceptional circumstances and otherwise in accordance with s 69ZT(3) of the Act. Although his Honour devoted a considerable amount of time to the issues of “tendency” and “coincidence” this is a distraction. For reasons we do not understand, his Honour introduced these matters. His Honour was required to do no more than be satisfied on the totality of the evidence, the probative value of the evidence was such he could properly infer the father was involved in these incidents, notwithstanding the absence of an eyewitness. In the context of the stalking and threatening behaviour which his Honour was satisfied the father engaged in, it was not necessary for him to find a “system” of stalking behaviour virtually identical to the car and Christmas Day incidents.
Turning then to the evidence, in relation to Mr U the trial Judge found his evidence reliable and was generally satisfied he endeavoured to be truthful. In relation to the father he found his evidence “generally unreliable and [did] not accept him to be a witness of truth”. His Honour’s findings in relation to the father’s credit and general findings (some specific findings are) in relation to Mr U’s evidence are not challenged.
In his affidavit sworn 3 February 2009 Mr U gave evidence that:
45.On or about 14 December 2008 around 8.30pm I went out to the car to go to the local shop. I noticed the back right hand tyre was flat. I discovered it had a six (6) to nine (9) inch slash right through the tyre. I got a new tyre.
46.The following night on or about 15 December 2008 I was gone to bed at 11.30 pm and looked out the window and noticed two (2) people walking down the street; I was suspicious and noticed one man stop at my car, which was parked on the street. He bent down at the front left-hand tyre and I ran outside. They ran away. His stature looked like [the father], but I cannot 100% sure it was him, despite the fact I can say I was pretty sure it was. The lighting was very good. The tyre had a large slash through the tyre six (6) to eight (8) inches long. I called the police.
At paragraph 30 of her affidavit sworn 16 January 2009, in relation to this incident the mother deposed:
On 16th December 2008 at 10.15pm [Mr U] observed the father and a friend of his [Mr T] walk up to [Mr U’s] car and slash his tyre. [Mr U] was just getting ready for bed and was lucky to look out the window at that time.
Mr U gave evidence, which was not challenged, that on the evening on which he observed the father, he reported the incident to the police and identified Mr T as the accompanying person. Mr T was known to Mr U as a friend of the father with whom he played cards. Mr U did not know Mr T’s surname.
During the hearing Mr T attended court. In response to counsel for the father’s question, Mr U identified Mr T as the person named Mr T referred to by him and the mother in their evidence.
Further in cross-examination by counsel for the father Mr U said “[y]ou’re asking me if I have seen [Mr T] and [the father]? … I said to the police that night I was 99.9”.
Mr U was questioned about his decision not to pursue police action. The following exchange then took place:
So you took it back from the police because you can’t identify that the people who were there that night were [the father] and [Mr T]?---That’s what I said to the police.
So this incident, in terms of your – I’ll rephrase that. You don’t know who these men were, do you?---No.
HIS HONOUR: Does that mean, so I can understand, you are not – you believe that they were the father and [Mr T] but you’re not 100 per cent certain?---That’s right.
Is that what you’re saying?---That’s what I’m saying.
Thank you.
MR BLISSENDEN: I’m somewhat confused now, your Honour, because I understood the witness to say he had withdrawn, for want of a better description, his complaint because he doesn’t know who they were. I specifically put to him, “You did that be cause you don’t know who those men were.”
Is that correct?---100 per cent, no, but I do believe that they were the two people who you brought me to discuss. (Transcript, 3 April 2009, p 355)
Mr T gave evidence in the father’s case. In evidence in chief counsel for the father read paragraph 46 of Mr U’s affidavit to him, then asked:
… were you in company with [the father] as described by Mr [U] in his affidavit on the evening of 15 December outside […] when one of the two people seen lent down in the vicinity of the type of a motor vehicle? … (Transcript, 5 May 2009, p 473)
Mr T answered “[n]o”.
Counsel for the ICL asked Mr T:
… [w]ere you with [the father] or can you recall being with [the father] on 15 December 2008? … (Transcript, 5 May 2009, p 473)
Mr T replied “I can’t be sure”. This evidence does not exculpate the father.
In relation to Mr T’s evidence about this incident, the trial Judge said he did not find it “particularly convincing”. No challenge is made to this conclusion. However, his Honour did not find Mr T was involved in the car tyres being slashed. In our view Mr T’s evidence does no more than remove him as the accompanying person. This invites the question, if Mr U was wrong about the accompanying person, was he also mistaken in his identification of the father? It is apparent from paragraph 164 of the trial Judge’s reasons he closely attended cross-examination by counsel for the father of Mr U. His Honour had regard to matters such as line of sight, visibility and Mr U’s subsequent withdrawal of his complaint to police which his Honour found did not involve withdrawal of his identification of the father. Although we have some reservations about this finding, we are persuaded that it was open to his Honour to find, as he did, that “on balance” Mr U saw the father and some other person that evening.
However, it does not necessarily follow that his Honour’s findings in relation to the father’s involvement on 15 December 2008 provided a sufficient evidential foundation for his findings that the father was involved in the following incidents:
·slashed Mr U’s car tyre in early November 2008 leaving a 6-8 inch cut;
·in early December 2008 scratched the paint on the mother’s car;
·on 5 January 2009 inserted nails into the rear passenger tyre on the mother’s vehicle.
It was in relation to these findings his Honour distracted himself in relation to s 97 and s 98 of the Evidence Act. Curiously, having said he would not apply those provisions, his Honour declared himself satisfied that in the context of high conflict and other stalking behaviour “there is a tendency or coincidence” such that “some, if not all” of the incidents of tyre slashing, car scratching and putting nails into the tyres of the mother’s car involved the father. Precisely which of these events were included in the “some” was not revealed by his Honour. As we have already said, a number of other grounds of appeal have been established. It is thus not necessary and is probably undesirable for us to express a concluded view in relation to these findings. It is sufficient to observe we have considerable reservations as to whether these findings were available.
In relation to Christmas Day 2008, the mother and Mr U gave evidence about men who were not known to either of them attending their property. Mr U described the incident, at paragraph 36 of his affidavit, thus:
… I noticed four hands and two heads on the top of my fence with people attempting to climb the 7 foot fence. By this time the children were inside. I went towards the gate when these two men ran off and crossed the street, got into a black car and drove off.
The mother noticed the padlock on the front gate had been interfered with.
As he was entitled to do, his Honour accepted Mr U’s evidence that:
34.On Monday the 15th December 2008 I got a phone call from the [father] and he said to me he was going to “get the kids for Christmas”. I asked him what he meant and he simply repeated it. I began to tell him that this harassment simply had to stop, and as I did so he slammed down the phone. (original emphasis)
Again we have considerable reservations about his Honour’s finding in relation to the father’s involvement in two men attending the mother’s home on Christmas Day. But given that the appeal is to be allowed on other grounds, we need not express a final conclusion.
Evidence of Mr J
In Ground 7 the father asserted that the trial Judge failed to give adequate reasons as to why he was satisfied that the father made a threat to Mr J to kill the mother in a conversation between them on or about 3 January 2009. There is no dispute the father and Mr J spoke at the gaming venue. The issue relates to the words which passed between them, in particular whether the father threatened to kill the mother and the children. The complaint relates to an asserted failure by his Honour to analyse or give reasons in relation to a matter which clearly influenced his findings about the magnitude of post separation violence.
His Honour’s dealt with Mr J’s evidence at paragraphs 247 to 249. There he stated:
247.Mr [J] gave evidence in accordance with his two affidavits and the statement he gave the police. He also gave evidence in accordance with the statutory declaration which was given to the police. Mr [J] was cross-examined by the Independent Children’s Lawyer (notwithstanding that he was the Independent Children’s Lawyer’s witness), counsel on behalf of the mother and counsel on behalf of the father.
248.Mr [J’s] recollection is sometimes not entirely accurate and he was challenged in respect of it. Mr [J] is not a person of good character and has a lengthy criminal history, details of which were tendered in evidence. Mr [J’s] evidence needs to be treated with caution because of his history and the way he gave evidence. There are differences in Mr [J’s] evidence and that of the mother and Mr [U]. I have concerns about the quality and reliability of Mr [J’s] evidence.
249.I do not in these reasons individually consider the detail of Mr [J’s] evidence. I have concerns about some of it but I am satisfied, on balance, of the evidence of Mr [J] that the father made a threat to kill the mother during a conversation between these men at [a gaming venue] on or about 3 January 2009. (footnotes omitted)
This is the extent of his Honour’s findings about what aspects of Mr J’s evidence he accepted and rejected. As his Honour said, he did not in his reasons consider the detail of Mr J’s evidence. Because of the gravity of the subject matter and its apparent influence on his finding (at paragraph 436 of his reasons) that the mother and children “are at risk of being subjected to violence and/or death at the hands of the father”, we agree with the submission made on behalf of the father that it was necessary for his Honour to expose his reasoning.
These are grave findings in relation to which it was important for his Honour to disclose how he determined to accept some but not other aspects of Mr J’s evidence. We are very troubled by the broad brush approach taken by his Honour to this serious matter, and on balance consider that Ground 7 has merit.
Conclusion and costs
The father has established error by the trial Judge. We agree that his Honour’s treatment of the social science material, misunderstanding of the evidence in relation to the children’s relationship with the father, risk assessment and failure to consider the father’s application to spend time with the children at a contact centre are material errors which permeate his judgment. We have expressed our reservations about other aspects of his Honour’s fact finding. We agree with the father’s contention that the errors render his Honour’s decision unsafe. We do not agree the unchallenged findings would enable us to conclude the outcome is plainly right. Amongst other reasons, in circumstances where there has been no consideration given at trial level to the father’s application for supervised time at a contact centre it is not appropriate it is determined by us. The appeal is thus allowed and the matter remitted for retrial before a judge other than Benjamin J.
It has been some time since the children have spent time with the father. The effect of orders which discharge those made by his Honour would cause the interim orders whereby the children spend time with the father at a contact centre to be revived. The trial Judge’s orders were not stayed and we were advised the mother, as she was entitled to do, acted in reliance upon them. It follows her and the children’s circumstances are different to those which existed when the interim orders were made. We propose to order that the existing orders remain in force until the re-hearing and determination of the matter or until further order. In our preliminary view we consider the better approach would be for the matter to be prepared for retrial and in the context of the retrial consideration given to whether the children’s time with the father should, resume at a contact centre.
We consider that there should be no order for costs in relation to the appeal and that the granting of costs certificates to both parties for the appeal and re-hearing is appropriate.
In relation to the ICL we reserve our decision so as to afford her the opportunity to provide written submissions as to a power.
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of the Full Court (Bryant CJ, Finn and Ryan JJ) delivered on 31 March 2011. This certification is amended as at 12 May 2011 to reflect a correction of a paragraph numbering error.
Associate: S Mills
Date: 31 March 2011
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