Naczek & Dowler

[2008] FamCA 89

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER [2008] FamCA 89

FAMILY LAW – Practice and Procedure – Evidence – Admissibility ruling

Family Law Act 1975 (Cth)

APPLICANT: MR NACZEK

RESPONDENT: MS DOWLER

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1222 of 2006

DATE DELIVERED: 18 February 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: RULING

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1222 of 2006

MR NACZEK

Applicant

And

MS DOWLER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

RULINGS ON EVIDENTIARY MATTERS

1. Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) governs the procedural aspects of the hearing of parenting disputes. The heading itself refers to “Principles for conducting child-related proceedings”.

2. Section 69ZN of the Act is a mandatory provision. It says:

   Application of the principles

   (1)     The court must give effect to the principles in this section:

   (a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and

   (b)in making other decisions about the conduct of child‑related proceedings.

   Failure to do so does not invalidate the proceedings or any order made in them.

   (2)     Regard is to be had to the principles in interpreting this Division.

   Principle 1

   (3)     The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

   Principle 2

   (4)     The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

   Principle 3

   (5)     The third principle is that the proceedings are to be conducted in a way that will safeguard:

   (a)the child concerned against family violence, child abuse and child neglect; and

   (b)the parties to the proceedings against family violence.

   Principle 4

   (6)     The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

   Principle 5

   (7)     The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

3. The section requires a court to have regard to five fundamental principles. In summary form those are:

   i.the court is to consider the needs of the child and the impact that the very conduct of the proceedings may have on the child;

   ii.the court is to actively direct, control and manage the conduct of the proceedings;

   iii.the proceedings are to be conducted in such a way as to protect the child and the parties from abuse and violence;

   iv.the proceedings as far as possible are to be conducted so as to promote co-operative and child-focused parenting by the parties; and

   v.the proceedings are to be conducted without undue delay, formality and legal technicality.

4. It is a tall order in a case such as this where the parties are polarised despite a significant lead-in time pending the ultimate phase of determination.

5. Section 69ZQ is also a mandatory provision. It is very much an extension of the second principle in s 69ZN. It requires a court to decide the course of the evidence and particularly, in which order issues are to be decided.

6. Section 69ZT provides that certain provisions of the Evidence Act 1995 (Cth) do not apply to parenting proceedings. The provision is far-reaching; some would say breathtaking.

7. A court may decide to apply some of the otherwise excluded provisions of the Evidence Act.

8. Earlier in the proceedings, I ruled that the Evidence Act would apply to evidence to be given by the parties but not the other witnesses. I am mindful of that order in making these rulings for this hearing.

9. Notwithstanding my order under s 69ZT(2) applying the rules of evidence to the parties, s 69ZT(4) provides that the Court may give such weight as it sees fit to the very evidence that it has admitted.

10. Section 69ZX is not a mandatory provision. It permits the Court to give directions about what evidence may be called but more importantly, leaves the Court with an apparent unlimited and unrestricted responsibility to determine the nature and extent of the evidence in chief and also the cross-examination of a witness.

11. Section 60CA is a mandatory provision that requires a court to regard the best interests of the child as paramount when deciding whether to make a parenting order. That edict is reiterated in s 69ZX(4).

12. I have allocated an extra period of ten sitting days for this case which has already had five days. Every case warrants as much attention as it can be given but there are two fundamental principles that govern my decision. The first is that I need to examine the material that the parties wish to use bearing in mind the provisions to which I have referred. I must be able to say that I can ultimately make a decision which is in the best interests of these two children. The second principle is that I must be mindful that the Court’s resources are finite and there are many other litigants who have similar demands as well as rights, for the attention of the Court.

13. Having regard to those two issues, I am comfortable in saying that after reading all of the written materials and reading the oral submissions of the parties and counsel for the Independent Children’s Lawyer, based on the rulings I am about to make, the hearing can and should be contained within the ten days. In that time, I expect to be able to assess the respective proposals of the parties relating to the children and to be able to make a decision which is in their best interests. In addition, I will not be in a position to allocate any more time in the immediate future for the matter.

14. If the matter was further delayed, it is conceivable having regard to the principles set out in Division 12A that if I was not satisfied that a final decision could be made notwithstanding the fifth principle in s 69ZN(7) and the urgings of the Act in s 60CC(3)(l), interim orders trialling one of a number of proposals might be contemplated.

15. I had directed the parties to work out an agreed trial plan but they could not reach consensus. Counsel for the husband submitted that there would be a wide range of topics and behaviour which could be the proper subject of cross-examination and that procedural fairness meant that curtailing time in advance should not be done. The provisions in Division 12A which direct a court to control the process also give it the discretion about what evidence may be called and how the witnesses are to be cross-examined. That discretion must be exercised having regard to the five principles I have mentioned and which are also mandatory considerations. It is therefore my intention not to restrict the time for cross-examination but to insist that the relevance of the questions be apparent to the issue that I am required to determine. I have said previously and reiterate that whilst past conduct may very well foretell the way in which someone will behave in the future, I do not see any necessity for either party to establish every factual issue about which they have a dispute. I am obliged to determine, as between the various proposals, which will best promote the welfare of these children. It is important to also reiterate what is set out in s 97(3) of the Act. That provisions reads:

    In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that proceedings are not protracted.

16. In their written submissions on behalf of the husband, Mr St John SC and Mr Strum argued that curtailing the duration of the trial was arbitrary and amounted to a lack of procedural fairness. I disagree. The whole purpose of Division 12A is for the trial judge to direct the attention of the parties to issues that will assist the Court to determine matters. The issue of procedural fairness is an interesting one. The law has long required courts to uphold the principle of natural justice but the clear direction of the Parliament is that the Court is not to apply a completely adversarial process. Procedural fairness does not mean hearing all of the evidence that a party wishes to place before the Court. There are two criteria to be considered. The first is that the material proposed is relevant to the issue to be determined bearing in mind that the Court is no longer constrained by all of the rules of evidence. The second is that the parties have an opportunity to be heard on the issue of what is relevant.

17. In the Less Adversarial Trial process (LAT) to which this Court is committed and which is enshrined in Division 12A, the normal practice would be for the trial judge to enquire what issues were contentious and required determination and to then direct that evidence be gathered for that purpose. It is perhaps unfortunate in this case that the LAT path was not followed. That occurred because the case was given a priority fixture on the basis that it was an international relocation dispute and that warranted attention over and above many other equally pressing cases in the Court’s list.

18. Having arrived at the trial stage quickly, the parties determined the evidence that they desired the Court to hear based very much on an adversarial approach.

19. As such, the parties have been accorded procedural fairness by being allowed to present what they saw as evidence that may have assisted the Court but more importantly, I have given all parties an opportunity to turn their attention to the issue by filing written submissions.

20. Senior Counsel for the wife used the phrase that the wife’s submissions would address the “scoping” of the trial. In my view they have done that.

21. The Independent Children’s Lawyer succinctly argued why many pieces of evidence sought to be lead should not be allowed. I have contemplated all of those matters.

22. Counsel for the husband submitted that the process of limiting the trial was arbitrary. That was a reference to limiting the time. In paragraph 9, counsel said (having regard to the most recent affidavit of the wife) for the Court to “dissect out all relevant topics” was nothing short of “preposterous”.

23. Preposterous means absurd, farcical, ludicrous and ridiculous amongst other things. In an adversarial system there might be every reason to use those adjectives but to “dissect out all relevant topics” is exactly what Division 12A expects a court to do. Because of s 69ZQ, that is the very responsibility that I am obliged to fulfil.

24. Before turning to the evidence, I propose to give a ruling in respect of the order of witnesses. I had previously indicated an attraction to the psychiatrist Dr. M giving evidence first. I have had the benefit of hearing his evidence previously and as will be evident from the judgment I then gave, I found his evidence helpful. Dr M has again seen the parties and the children and given a report that exceeds 40 pages. This evidence highlights the issues about which I expressed concerns previously. Much now depends on whether the underlying bases upon which Dr M saw the parties was historically and factually accurate. On that basis, the evidence of the husband and wife is critical to my determination and I propose to hear the husband first followed by the wife. I do not propose to limit their evidence but will rigidly enforce the relevancy rule.

25. Before determining what other evidence the parties should call, I propose to deal with some contentious issues about that evidence.

26. The first relates to a large number of hours of taped telephone conversations. The husband desires to lead this evidence.

27. Counsel for the wife argue that this material is unlikely to assist in determining what is in the best interests of these children and is likely to be irrelevant.

28. The wife’s position is that there is little to be gained by a “protracted exploration” of this material.

29. The husband argues the evidence highlights destructive conduct of his relationship with the children at a time when she was suffering from a borderline personality disorder which is now being addressed by psychotherapy.

30. I have now had the benefit of listening to all of the taped conversations. There are many things that require explanation but also having read the affidavits of the parties, it is clear that each party’s reference to selected pieces of conversation has to be seen in the context of not only the whole of the taped conversation but also the circumstances of what was going on in the lives of the children at that time. For example, the expressed frustration of the husband at not being able to speak to the children has to be seen in the context of the wife’s assertion that her mobile telephone was inadequate. The husband’s concerns about the longevity of some calls has to be taken in context of what two young children were doing at that time.

31. The wife points to the evidence of Dr M that treatment would change her disposition. Dr M said that there were positive developments regarding the wife’s psychological status but there were still reports of her intrusion into the children’s telephone relationship with their father. That is a matter that needs exploration.

32. Dr M’s optimism indicated that whilst it may take some time, it is his opinion that the wife will continue to improve in her capacity to manage herself and her anxieties from which some of the conduct issues stem.

33. The Independent Children’s Lawyer took the stance that the Court could hear a selection of the conversations to enable an understanding to be gleaned of the issues arising from the calls. There was an attraction to that approach but as I found from hearing them all, an arbitrary limitation as to number or time does not give an accurate picture.

34. I was provided by each side with transcript of some of the calls to be used as an aide memoire. I have only looked at these in a small number of incidents where the dialogue was difficult to follow.

35. If as Dr M suggests there is a problem from the children’s perspective, of the wife being present when they communicate with their father, that could be simply addressed. I note the wife denies that she has interfered notwithstanding her voice is clearly audible at times in the background.

36. On the same topic, if as I understand the husband’s case, he points to the conversations as evidence of both the lack of parenting capacity on the part of the wife and also a failure to facilitate his relationship with the children as I am required to consider in s 60CC(4), I do not see the necessity to hear cross examination about all of the conversations over the period involved. I am also concerned that continued cross-examination on the one issue may be inconsistent with principle 4 as defined in s 69ZN(6). I imagine that cross-examination on every one of 12 hours of taped telephone conversations could do little but exacerbate the already poor relationship. Notwithstanding the parties may be content to point to the other’s failures in that way, the Act makes it clear that I have a responsibility to limit the damage if I can.

37. It is very clear from Dr M’s latest report that the relationship between the parties has not improved however after the incident that brought about the departure from Australia of Ms G, there were signs of the parties attempting to communicate with one another about the problem as it affected the children.  Accordingly, I propose to allow the evidence of the taped conversations to be used but will stop cross-examination if I find that the issue is repetitive or further destructive of the relationship.

38. The next issue relates to matters that delayed my delivery of judgment in June 2007. It seems common ground that Ms. G made a notification to Department of Human Services. Ms. G is no longer a witness nor, subject to some cross-examination about that issue, is she a part of the husband’s life. I do not propose to allow evidence of what Ms. G thought or was told at that time to distract the parties from what is now before me. The Department did not intervene in the proceedings and their view of the capacity of the mother as a parent is irrelevant because that is the issue that I have to determine. In respect of that issue, I propose to limit cross-examination of the husband (if it is to an issue at all) as to his knowledge of the notification, his perception of the seriousness of the situation based upon what he knew of the physical health of the children at that time and what steps he took (if any) to resolve the matter with the Department.

39. In respect of the children’s school, the wife urges that I should hear from someone to know what is happening with N. The Independent Children’s Lawyer agrees but says it relates to both children. Dr M to a very large degree, covers this issue in his recent report as a result of his discussion with the Principal whose evidence I heard in 2007. I am interested to know whether the reported progress during the year has altered any concerns that the school may have about the transition of N into the next level of his education whether it is in that school or one in the husband’s area if the children were to live with him. I do not expect this to be a big issue because it seems to me to be a matter within the purview of Dr M.

40. I turn then to the issue of witnesses. I received succinct written submissions from the Independent Children’s Lawyers and counsel for the wife. The husband did not specifically address the issue.

41. The husband wishes to rely on the evidence of Mr G Dowler. His affidavit was filed on 4 December 2006. He is the brother of the wife but is estranged from her. He said that the wife had had a volatile relationship with her family and that she had turned against him when she was approximately 23 years old. That is a long time ago. Over the years, he has viewed the wife as a person who can turn on anyone at any time. He opines that the wife’s capacity to “hate and the lengths that she will go to achieve her objective are frightening”. He views her as a compulsive liar and in need of treatment.

42. The wife says that this evidence relates to the poor relationship between the wife and some members of her family. The wife’s approach to her estranged brother is to challenge his honesty.

43. The INDEPENDENT CHILDREN’S LAWYER says that the evidence bears no relevance to the issues that the INDEPENDENT CHILDREN’S LAWYER sees as important.

44. Well-meaning or otherwise, there is little in this evidence that assists me to determine the parenting capacity of the wife or frankly to know anything of substance about the two children. Mr. G Dowler’s opinions are just that. It is my responsibility to determine those matters on the evidence. In a factual sense, there is nothing of substance in Mr. G Dowler’s evidence.

45. I cannot see that Mr G Dowler does any more than say things about the husband and the wife that they would otherwise say of each other. Based on the wife’s view of Mr. G Dowler, one way or the other would add little to the evidence about what is best for these children.

46. I rule that it is not relevant to these proceedings and the husband cannot rely upon the affidavit.

47. There has also been much debate between the parties about the evidence of Mr T Dowler. Again, the husband wants to call evidence from him.

48. His evidence is contained in an affidavit filed on 23 November 2006. He then said that he was making the affidavit at the request of the solicitors for the husband. The evidence was that upon arrival from England in January 2006, the wife lived with Mr. Dowler for four weeks. Within a very short period of time, brother and sister fell out. Mr. Dowler’s view was that the wife was critical of his communication with the husband. The description he gave of the wife’s behaviour included about how she reacted in front of the children and her denigratory behaviour towards the husband including in front of the children. Much of this evidence is now a matter that has been superseded not only by the professional diagnosis and views of Dr M but also the substantial evidence of the recorded telephone conversations.

1. He then referred to a transaction involving the wife, Mr Dowler and his wife purchasing a property and the various discussions associated with ownership and borrowings. The three fell out over the transaction. Mr Dowler said that he was appalled at the way the wife treated he and his wife. He set out that the wife asked him to lie about the transaction. That evidence must only be directed to the credit of the wife. Notwithstanding that the provisions of the Evidence Act relating to much of this material do not apply, I could not accept that the transaction has any relevance other than as to the truthfulness of the wife. As the wife has been scrutinised by a number of professionals all of who have or will give evidence, this evidence about her credit on this issue cannot assist me. That is particularly so in circumstances where the issue may be disputed.

2. Mr Dowler’s affidavit then goes on to relate an incident that occurred on 1 July 2006. The incident from Mr Dowler’s perspective stemmed from a dispute with the wife about the fact that he was delivering the children from their father to her. At the wife’s house there was a confrontation about which Mr Dowler and the wife seem to differ. He says that she blocked his exit from her home and he pushed her out of the way. Mr Dowler said he was “play acting”. The wife says that it was an assault and she involved the local police.

3. The wife’s view about the evidence of Mr Dowler is that if the husband wishes to rely upon it for the purposes of discrediting the wife and also to rebut what the wife says about an assault claim then the question of Mr. Dowler’s propensity towards violent behaviour is an issue and that justifies an exploration of Mr. Dowler’s background. According to the wife, therein lies the relevance.

4. The Independent Children’s Lawyer took the view that there is no relevance in the proposed evidence of Mr Dowler because apart from being out of date, it pre-dates the wife’s therapeutic treatment and as such, even if I accepted Mr. Dowler’s version of events, it would not assist me in making any determination about what is best for the children.

5. There are claims and counterclaims as to who did what. If that issue was of any significant probative value to assist me in determining what is in the best interests of these children, it can only be about the parenting capacity of the wife and the fact that she may have behaved badly in relation to a matter that indirectly involved the husband and as such she could be criticised. However, in this case, I return to what I earlier said about the subsequent professionals’ involvement and the substantial body of taped conversations. Again, to depart from my focus on the future for these children to make a finding of fact about who, as between brother and sister, did what and said what in July 2006, is pointless. This case is about a positive approach to working out what to do for these children. The husband may very well argue that things such as are alleged to have occurred in July 2006 will re-occur once the spotlight is away from the wife and the case is concluded. However, I am much more interested in the future parenting capacity of the wife now that the issue of the borderline personality disorder has been diagnosed.

6. The significance of this issue is also that the children were either present or within the vicinity. There is ample other evidence in this case about what the children have witnessed and I do not see that this will advance the matter.

7. Accordingly, I rule that the evidence of Mr Dowler in relation to the July incident will not assist me and will therefore not be permitted to be led.

8. Mr Dowler’s evidence then goes on to refer to interaction between the wife and Mr Dowler’s daughter K. That is set out in paragraph 45 of the affidavit. The importance of this evidence lies in the fact that the daughter is proposed as a potential carer of the children if they are to live with the husband in England. The wife’s antipathy to the daughter (if that is what it is) is a critical issue in the proceedings should the husband’s proposal be accepted. Any evidence about the wife’s attitude is therefore both important and relevant. I propose to allow that evidence to be led.

9. Mr Dowler then refers to statements attributable to the wife that she had had breast cancer, was infertile and had had a double mastectomy. I discussed this issue in the mention hearing. If it was so said, it could either mean that the wife was a provocative liar or had some delusional behavioural problem. Whether it was said to the family or not does not seem to me to be of importance. What is significant is whether that sort of behaviour is consistent with the professional diagnosis of Dr M. If it is and I would be interested to hear about it from Dr M, then whether the wife said it or not matters little. The important question is whether that sort of behaviour (if it occurs) can be treated as contemplated by Dr M.

10. Accordingly, I initially rule that the evidence cannot be led. However, if Dr. M says that this sort of behaviour is inconsistent with the diagnosed disorder, I will revisit the issue. I appreciate that that creates a dilemma for cross-examination but I would permit that issue to be re-opened both in respect of leading evidence by the wife and the witness and cross-examination on it.

11. The wife issued a subpoena to the Police to produce records about Mr. G Dowler’s professional conduct and although the Department did not object to the release of the material, the husband and Mr. Dowler did.

12. I have no hesitation in saying that the Department was correct in responding as they have to the call of the subpoena. Further, I have no hesitation in saying that Mr. Dowler is a person who has an interest in the material and has a right to be heard. The question of the release of this information however depends upon whether it has some apparent relevance to an issue before me.

13. The authorities governing the obtaining and use of material under subpoena are not new. This Court has largely adopted the view set out in National Employers Mutual General Insurance Associated Limited v. Waind & Hill [1978] 1 NSWLR 372. That decision was mostly approved by the Full Court in Hatton v Attorney-General for the Commonwealth of Australia and ors (2000) FLC 93-038.

14. However, having ruled that the evidence of Mr Dowler in relation to the disputed incident is not to be led, I have taken the view that anything about Mr Dowler’s demeanour, background or professional reputation can have no apparent relevance to any issue that I have to decide.

15. Accordingly I uphold the objection of the husband and Mr Dowler but not for the reasons very carefully and properly articulated in the submissions provided to me by counsel for the husband.

16. Whilst dealing with proposed witnesses, the wife has filed affidavits by and seek to rely upon:

    Ms L;

    Ms S;

    Mr K;

    Ms V;

    Mr P;

    Mrs P;

    Ms A;

    Ms M; and

    Mr M Dowley

17. My general synopsis of the evidence of these witnesses is as follows.

18. Ms L’s evidence relates to the parenting skills of the wife’s brother and sister-in-law (paras 13-14). It is an attack on their credibility. Ms. L makes factual observations about the children as being polite (para 6) and then that she has seen no poor parenting by the wife (para 18-20). Apart from the fact that Ms L is supportive of the wife’s parenting skills, it seems mostly to be a rebuttal of the husband’s witness. Whilst some of this material may be relevant to an issue that I have to determine because of s 60CC(3)(b) and (f), because of what has occurred subsequent to April 2007, I do not see this evidence as being likely to assist me to assess the proposals of the wife. That issue is much more importantly a matter about which Dr M’s evidence is critical.

19. The wife argued that if Mr T Dowley was not called, then the evidence of this witness could be dispensed with. I agree.

20. Accordingly, I rule that Ms. L’s evidence is not to be lead.

21. I have read the affidavit of Mr M Dowley. He is the wife’s brother. The wife seeks to rely on his evidence. He disputes his brother’s assertion about the wife’s estrangement from their family (para 28), the behaviour of his brother at a child changeover. He is largely supportive of the wife’s capacity as a parent.

22. Much of this affidavit sadly draws into context and contrast the internecine war between the family members. If allowed to be led, this evidence would need to be tested as to a number of issues. Those issues do not assist me in determining the wife’s capacity to care for the children because they are Mr Dowler’s opinion in circumstances where I have a number of health professionals who are aware of the factual matrix of the family and who have monitored the wife subsequent to the events having been said to have occurred. Accordingly, I do not see that this material will assist me at all. I rule it cannot be led.

23. The material filed by the wife in respect of Mr P relates to a specific changeover in October 2006 and the behaviour of the husband (para 8). The wife points to the evidence of the husband relating to the handover on 1 October 2006.

24. It is of marginal significance having regard to the time that has passed but I would not be prepared to rule the evidence inadmissible until such time as I had heard the evidence of the husband about that issue. If the husband says that that issue is disputed then I would allow Mr P to be called.

25. The Independent Children’s Lawyer submitted that it was at best marginally relevant to the issues that she had identified and that may very well be correct. However, until I hear the husband’s evidence, it is hard to make that judgment.

26. The difference between this evidence and that of observations of the wife is that it is presumably put in relation to the husband’s parenting capacity. That is of some relevance.

27. Ms S’s evidence relates to the behavioural problems of N that she observed (para 12-16) and her observations of the wife in dealing with the children. Much of this evidence is supportive of the wife’s case but adds little to what the health professionals know and what the wife concedes.

28. Counsel for the wife points to the relevance of this evidence being that notwithstanding N is provocative, the care provided by the wife as evidenced by the presentation of the children at school, indicates her parenting capacity. The evidence also relates to the wife facilitating telephone conversations with the husband.

29. Whilst it was clearly relevant at the time that the affidavit was filed, I now see that even if it was contentious, it adds little to what I already know about the wife.

30. The Independent Children’s Lawyer submitted that this evidence was at best marginally relevant and I agree. If it is to be challenged by the husband, I would allow it to be led. If it is not an issue that the husband sees as relevant, I would not allow it to be admitted. That is an issue I will determine after hearing what each party says about it.

31. Mr K gives supportive evidence about the wife’s love for the children and his own inexpert opinion about her mental state. Having regard to the concessions made by the wife through her counsel as to some of the things that did happen in the early part of 2007, there is no relevance in this material. In counsels’ written submission, they agreed. I rule it inadmissible.

32. Ms V makes observations about the interaction on the telephone between father and children.

33. Counsel for the wife submitted that this evidence was relevant to the question of the wife facilitating the telephone conversations between father and children.

34. Having regard to the fact that at the time of writing this, I have not heard the use to which the telephone conversations are to be put, I do not feel that I could comfortably make any decision about this evidence. It may have some relevance.

35. The Independent Children’s Lawyers submits that the evidence is marginally relevant. I am not convinced about that.

36. At this stage, I propose to allow the evidence to be led.

37. Ms A is a friend of the wife. She makes observations about the change in the wife albeit that those observations were over a year ago and have to a large degree been superseded by the professional observations I have already mentioned.

38. Counsel for the wife submitted that the evidence was relevant because it showed that the husband did not provide support for the wife in the early stages of the lives of the children. More importantly, she says that the wife is positive and looking forward to the future centering herself around the children and their difficulties.

39. The Independent Children’s Lawyers submitted the evidence was relevant because of her closeness to the wife both before and after separation.

40. My preliminary view is that Ms A has some relevant evidence to give and that it should be tested if the husband so wishes because it may give some insight into what would happen into the future should the wife be the person charged with the responsibility of caring for the children.

41. Mrs P falls into the same category as Mr P and there is some potential relevance but having regard to the timing of the observations, it must be marginal.

42. Of this witness, the wife argued that the evidence showed the wife and children were settled and happy as well as the children being well looked after.

43. The Independent Children’s Lawyer submitted that the wife should choose which witness she wished to rely upon because of the similarity of the material. I would not take that view but I would like to hear first whether the husband really challenges this witness. At this stage, I would not rule the evidence inadmissible.

44. Ms M’s evidence relates to the wife’s parenting capacity and also to having observed the telephone interaction between the parties. Ms. M has an ongoing relationship with the wife and having regard to the focus of her observations and, similarly to the evidence of Ms A, I would be interested to know whether there has been an observable change having regard to the assertion by Senior Counsel for the husband that despite all of the work being done by the psychotherapist, the quality of his relationship with the children as a result of the wife has not changed.

45. Counsel for the wife referred to this evidence as indicating that N is a complex and obsessive child who is well managed by the wife. Counsel argued that it was evidence of the positive nature of the wife’s attitude and demeanour since October 2006. This witness is also said to corroborate the wife’s version of what occurred in the handover in September 2007. This is a matter about which there is a factual dispute.

46. Ms. M’s evidence is therefore relevant. I propose to allow that evidence to be led.

47. K Dowler is the wife’s niece and I have already referred to her. Her evidence is important and relevant about not only what role (if any) she would play in the care of the children if they went to England with the husband but also what sort of relationship she would have with the wife whether the wife went to England or not. In addition, if she was a significant carer in the lives of the children, her attitude about fostering the relationship between mother and children is of vital importance. Her evidence is therefore important and relevant.

48. Ms W is a person about whom I made some orders in 2007. Despite the recent report of Dr M expressing reservation about this witness being called, it is a matter that I have ruled upon and I see no reason the alter that position. I expressed the view at the time that if the witness was uncomfortable about the role she was being expected to play, she should express that view and I would reconsider the position. As I understand the situation, she has continued her counselling with the wife.

49. The parties have had Ms W’s notes provided to them up until the time of the return of the subpoena. They should be updated.  I shall deal with this witness after hearing submissions.

50. The husband has now sought a wide variety of details about the wife’s financial position. His position is succinctly set out in his counsels’ submission. They said that in response to the suggestion that the only relevant issue related to the payment of her legal costs was contradicted by the material set out in her affidavit. The submission said:

    The consequence of the financial situation she describes is an apparent change from her previous proposal that, in the event the children are ordered to commence to reside overseas with the husband, she would follow. She now asserts that this is impossible…Moreover, she asserts that she may well have to sell her current residence and commence to reside elsewhere…Additionally, wife in her affidavit concedes comments have been made by her to the children and or by the children in telephone conversations with the husband indicating that the wife was in financial need…

51. The wife’s response is that what the husband wants to examine is “extreme”. She says that the husband knows her income position and in material, she has set out her capital position. The course adopted by the husband was therefore unnecessary and oppressive.

52. I have taken the view that having regard to the need for stability in the lives of the children, the housing arrangement is a significant matter. Importantly, s 60CC(3)(f) requires a court to examine the capacity to provide for the needs of the child. To that extent, the wife’s capacity to provide a house and lifestyle are relevant. Whether they are critical to the determination of this matter remains to be seen.

53. A further matter for consideration is the fact that senior counsel for the wife foreshadowed an application would be made for security for costs. The Full Court in Luadaka v Luadaka (1998) FLC 92-830 at 85,507 said:

    The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other.

54. The Full Court went on to point out that a security for costs order is still a costs order and that therefore the provisions of s 117 applied. For me to determine those matters would require some consideration of the financial position of both parties regardless of the merits of the application.

55. In MAR v ACD; RFR; SP & JMP; NSW Department of Community Services (Intervenor) (2002) FLC 93-097, Mullane J was asked to make an order for security of costs in anticipation of a trial starting where the issues appeared reasonably clear and there was a family report which suggested that particular parties were “unlikely to succeed” or that their “prospects were limited”. In this case I have a report from the single expert witness Dr M who makes a recommendation but that is a long way from saying that the husband is unlikely to succeed or that his prospects are limited.

56. If the wife wishes to make an application for security for costs (and I do not treat the oral indication by Senior Counsel for the Wife last week as such) then I will hear that at the appropriate time.

57. There is a relevant financial issue in this proceeding but it is the extent to which I should allow the inquiry into the wife’s position that is questionable. I agree with senior counsel for the wife that far-reaching inquiry is oppressive and more importantly, unnecessary. There may well have been documents provided by the wife as seems to have been foreshadowed in the husband’s submission but I shall determine the extent of the discovery when I know more about what it is that the husband wants to investigate and why. I therefore propose to order the wife to produce a variety of readily available documents to the Court and I shall then determine the relevance of this issue.

58. There is also a debate between the parties about what medical and other health professional treatment the parties and the children have had. Rather than to descend into that detail, I propose to order that the husband and the wife provide to the other and the Independent Children’s Lawyer details of attendances. I shall then determine after hearing submission which (if any) bodies should receive a subpoena about their files.

1. I otherwise make orders as I have indicated.

I certify that the preceding One Hundred and Seven (107) paragraphs are a true copy of the Ruling of the Honourable Justice Cronin

Associate: 

Date:  18 February 2008