MATTHEWS & BENDER

[2013] FamCA 22

FAMILY COURT OF AUSTRALIA

MATTHEWS & BENDER [2013] FamCA 22

FAMILY LAW - EVIDENCE – Question as to whether pursuant to s 69ZT(3) of the Family Law Act 1975 the Rules of Evidence apply

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

APPLICANT: Mr Matthews

RESPONDENT: Ms Bender

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

FILE NUMBER: MLC 3524 of 2008

DATE DELIVERED: 31 January 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Coote

SOLICITOR FOR THE APPLICANT: Digala & Associates

COUNSEL FOR THE RESPONDENT: Ms Samson, Solicitor

SOLICITOR FOR THE RESPONDENT: Peninsula Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

IT IS ORDERED THAT

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3524  of 2008

Mr Matthews

Applicant

And

Ms Bender

Respondent

REASONS FOR JUDGMENT  

1. This matter was listed before me as a first day of hearing on 18 January 2013. I have set the matter down for a trial before me commencing on 15 July 2013 as a four day matter.

2. In this case there is a long history of allegations of family violence and sexual abuse of the child by both the father and the paternal grandfather. Proceedings with respect to the child, who is now 7 years age, were first instituted by the mother in the Federal Magistrates Court of Australia in May 2008. There have been various applications filed by the father and the mother since that time including a number of contravention applications filed by the father. The mother has also made a number of applications in the Magistrates’ Court of Victoria seeking intervention orders as has the father on one occasion. On 29 February 2012 the father filed an Initiating Application in which he sought orders that he and the mother have shared parental responsibility for the child and that the child live with him and spend time with the mother each alternate week and each alternate Wednesday. In her response filed 26 March 2012 the mother sought orders that she have sole parental responsibility for the child, the child live with her and spent time with the father on a supervised basis.

3. The Department of Human Services have investigated and been involved with the child. The parties and in particular the mother, have consulted and been examined by numerous professionals including Ms L and Dr N. A s11F Children’s and Parents Issues Assessment was prepared by Ms D in April 2012. Ms D described the mother as “steadfast in her belief her daughter has been a victim of sexual abuse at the hands of her father and now her paternal grandfather.” She reported that, “she would continue to believe that time with [the father] requires ongoing supervision, even in spite of any future contrary views by authorities. The allegations of abuse have not been substantiated.

4. On the 30 May 2012 FitzGibbon SR made orders by consent that the father spend supervised time with the child on two occasions, that he spend unsupervised time with the child but not overnight, on an overnight basis but on the basis of the paternal grandmother being in substantial attendance and that thereafter he spend time with the child on an unsupervised basis each alternate weekend and from after school until 7.00pm each alternate Wednesday. There was a notation to that order to the effect that “..the wife upon discussion with her Counsel and reading the Department of Human Services report dated 28 May 2012 agrees that it is upon the available evidence difficult to maintain that the child having contact with her father is an unacceptable risk”. It was this basis that the matter was removed from the Magellan List of Cases.

5. It is in this context that the father puts his case that the child has been emotionally abused by the mother and that she does not have the capacity to provide for the child’s emotional and psychological wellbeing on an ongoing basis. Whilst this is no longer a Magellan case and the mother has conceded that it would be difficult to sustain the allegations of abuse at the hearing before me she again sought to revert to a regime of strictly supervised time with the child.

6. During the hearing I raised with Counsel for the father, the solicitor for the mother and Counsel for the Independent Children’s Lawyer the question of whether s 69ZT(1) should apply or whether the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s 69ZT(1).

7. In order to apply all or any of the provisions of the Evidence Act which by virtue of s 69ZT(1) do not apply the court must be satisfied that the circumstances are “exceptional” and in determining whether the circumstances are “exceptional” must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order to give a direction in relation to the evidence and any other matters the Court considers relevant.

8. It was submitted by both Counsel for the father and the ICL that the rules of evidence should apply. The solicitor for the mother did not object to my adopting that course if I determined that it was appropriate to do so.

9. It is clear to me that notwithstanding the mother’s concession the evidence in relation to the allegations of abuse are extremely important to the outcome of this case. The heart of the father’s case is that the mother has fabricated the allegations of abuse in order to undermine his relationship with the child. Even the mother does not seek to establish that the child has been abused, although I am not confident that she will not in the course of the trial attempt to do so, to answer the father’s case the mother will need to establish that there was at least a reasonable basis for her concerns. Findings with respect to sexual abuse should not be lightly made nor in my view should findings that a party may have fabricated evidence. In my view it is likely that there will be questions as to the probative value of the evidence if that evidence, but for the provisions of s 69ZT(1) would be inadmissible.

10. There are a number of experts who will be giving evidence and it is also important that the factual evidence that will underpin their evidence is reliable.

11. The competing proposals in this case are a world apart and the outcome has the potential to significantly change this young child’s life. The importance of the evidence and that significance of the outcome lead me to the conclusion that the circumstances are exceptional and that the rules of evidence should apply. I am satisfied that this is likely to result in a fairer process and outcome.

12. Although the court does have the power to adjourn the hearing, give directions in relations to evidence that would not be likely to allow the court to address an injustice that might be caused by relying upon evidence that would but for the provisions of s 69ZT(1) be inadmissible.

13. It is on this basis that I propose, pursuant to s 69ZT(3) of the Act to apply the rules of evidence.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 31 January 2013.

Associate: 

Date:  31 January 2013