Osterton and Sunderland (No. 2)

[2009] FamCA 590

FAMILY COURT OF AUSTRALIA

OSTERTON & SUNDERLAND (NO. 2) [2009] FamCA 590

FAMILY LAW – EVIDENCE – Part VII, Division 12A – Relevance – Probative weight

Family Law Act 1975 (Cth) Division 12A of Part VII, ss 69ZN(4), 69ZQ(1)(d), 69ZX(1), 69ZT(1)
Evidence Act 1995

APPLICANT: Mr Osterton

RESPONDENT: Ms Sunderland

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5281 of 2007

DATE DELIVERED: 19 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 19 June, 2009

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms M. McAuley

SOLICITOR FOR THE RESPONDENT: Campbell McAuley

INDEPENDENT CHILDREN'S LAWYER: Pearsons Schetzer

Orders

1. That the affidavit of the applicant filed 11 June 2009 be removed from the court file.

2. That the following affidavits, which were annexed to the affidavit of the applicant filed 11 June 2009, be filed this day, the court noting their effective filing date to have been 11 June 2009:

   (a)      affidavit of Ms MC sworn 6 June 2009;

   (b)      affidavit of T Osterton sworn  6 June 2009; and

   (c)      affidavit of Mr S sworn 6 June 2009.

3. That on or before 24 June 2009 the applicant serve on the solicitor for the respondent and the Independent Children’s Lawyer a copy of each and every document, DVD and CD annexed to the affidavit sworn by him and filed 26 May 2009.

4. That the applicant’s application to subpoena Ms LD to give evidence at the trial is dismissed.

5. That the respondent file and serve all affidavits on which she intends to rely by 3 July 2009.

6. That the Independent Children’s Lawyer have leave to file and serve a subpoena addressed to Victoria Police.

7. That questions of the admissibility of evidence contained in affidavits to be relied on at trial be reserved to the trial.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES

That all extant applications remain listed for trial at 10:00am on 9 July 2009, subject to a part-heard case only.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5281 of 2007

MR OSTERTON

Applicant

And

MS SUNDERLAND

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The applicant, Mr. Osterton, is the paternal grandfather of the subject child, who was born in May, 2004.  The respondent, Ms. Sunderland, is the child’s mother.  The child’s father was A Sunderland;  he is one of the applicant’s sons.  A Sunderland died in 2007.  The respondent opposes any orders which would allow the applicant to spend time or communicate with the child. 

2. The proceedings are conducted pursuant to Division 12A of Part VII of the Family Law Act 1975. They are listed for trial on 9 July, 2009, subject to a part-heard case only. Directions for trial were given on 7 April, 2009 and the applications were listed for mention today to assess readiness for trial and determine which, if any, of affidavits filed pursuant to directions given that day could be relied on at the trial.

3. On 19 June, 2009 the applicant filed an affidavit sworn by him on 11 June, 2009. It contains no facts save the statement “See attached witness affidavit/statements A, B, C and D”.  A is an affidavit sworn by Ms MC on 6 June, 2009, B an affidavit sworn by T Osterton on 6 June, 2009 and D an affidavit sworn by Mr S on 6 June, 2009.  The court ordered the affidavit sworn by the applicant be removed from the court file but he was given leave to file the affidavits of Ms. MC, Mr. Osterton and Mr. S.

4. Annexure C is headed “Affidavit by [Ms LD]”.  It is a typed document and at the foot is handwritten “Acknowledged by [LD] on 4/6/09 – documents for Affidavit Provided – Awaiting Return”, followed by a signature.  It transpired that signature was that of the applicant.  Ms. LD had neither signed nor sworn the “affidavit”.

5. As noted in an earlier judgment, the applicant and Ms. LD have a son, JD.  An order made on 19 January, 2009 gave the ICL leave to subpoena DHS files in respect of JD.  As was made clear at the time, the fact a document is produced pursuant to a subpoena does not render it admissible in the proceedings. 

6. Today, the applicant has told me that Ms. LD is “causing a lot of problems . . . she needs a big stick is all I can say to get her to court”.  He seeks that a subpoena be served on her, compelling her attendance at trial to give evidence for him.  He has told me that the document which was annexed to his affidavit was typed by “someone in the Department of Justice”, from a handwritten document prepared by him, apparently in respect of other proceedings or in the course of DHS involvement with one of his children.

7. Assuming for the moment that the document headed “Affidavit” contains statements made by Ms. LD at some time in the past, transcribed by the applicant, it is hard to find any part of it relevant to the proceedings before me.  First, it is clear that it was written some time ago.  The writer states that the applicant’s convictions at court since 2002 are known to her and expresses an opinion that they resulted from a “vendetta” between a sergeant of police and the applicant.  It says nothing of the convictions for which the applicant was sentenced on 23 January, 2008;  the reasons of the sentencing judge were earlier tendered as exhibit ICL-1. 

8. The writer states that in proceedings between her and the applicant she “repeated hearsay allegations that [the applicant grandfather] may have molested his children, however it’s ‘a throw away line’ used mainly in Family Court Actions for obvious reasons – but in [the applicant’s] case he was completely cleared by all parties involved, being DHS, Vic and Qld police, the alleged victims themselves and psychiatrists, court reports etc.”

9. While it is not at the heart of this ruling, I note that if Ms. LD were to appear, and seek to give evidence as set out in the “Affidavit”, the court would have to caution her as the evidence could expose her to the potential for a perjury prosecution, and in those circumstances, she would have the right to refuse to answer any questions about it. 

10. The bulk of the affidavit contains the opinions of the writer and her “reflections” on the child’s father, as a result of various things told to her.  The document reads as if the writer believed the child’s father to be alive, which suggests it originated prior to his death in 2007.  In summary, the document is a pot pourri of opinion, hearsay, speculation, conclusions and recycled gossip. 

11. Given an opportunity to say why Ms. LD should be called, the applicant said she has a child “in the relevant age group”, and was “around” when he and O (the mother of his son T) “had our stoush in the Family Court”.  He said she could answer questions relating to “any of the allegations [O] made and what she knows or thought of those allegations”.  He said that as a medico-legal typist, she is “next best” to an expert.  I add that T Osterton swore in his affidavit that his mother, O, died in 1998, well prior to the subject child’s birth. 

12. Section 69ZN(4) of the Family Law Act 1975 sets out the principle that the court is to actively direct, control and manage the conduct of the proceedings. Pursuant to s 69ZQ(1)(d), when deciding whether a particular step should be taken in proceedings, the court must consider whether the likely benefits of taking a step justify the cost of taking it. Section 69ZX(1) provides that the court may give directions or make orders about who is to give evidence.

13. While s 69ZT(1) provides that some sections of the Evidence Act 1995 do not apply in cases heard pursuant to Division 12A, that does not mean a party can call whatever evidence he or she chooses. The touchstones of admissibility remain relevance and probative weight. If the evidence sought to be admitted is not relevant to an issue to be determined by the court, it will be excluded. If potentially relevant, the weight which could be given to it must be assessed. Assuming Ms. LD was prepared to swear or affirm that the contents of the statement are true, the court could not find them sufficiently relevant to justify their admission. Nor is the court likely to be assisted by any of the matters to which the applicant referred, including Ms. LD’s knowledge of proceedings between the applicant and T’s mother, and on no basis could Ms. LD’s position as a medico-legal typist confer any reliable medical expertise.

14. I have noted on a number of occasions that this is a trial, not a Royal Commission.  The court must determine whether the child is to spend time and/or communicate with the applicant and whether the ex-parte order made on 11 May, 2007, restraining the child’s removal from the Commonwealth of Australia, should be discharged.  I am not satisfied that evidence from Ms. LD will assist the court in determining any relevant issue and the applicant’s application to subpoena her is dismissed. 

15. The document headed “Affidavit”, being Annexure C to the affidavit filed by the applicant on 11 June, 2009, will be removed from the court file with that affidavit. 

16. The applicant filed an affidavit of evidence in chief on 26 May, 2009.  There is a dispute as to whether the applicant served on the solicitor for the respondent and on the ICL a copy of every document annexed to the affidavit sworn by him and filed 26 May, 2009.  It is his obligation to ensure that each receive a true copy of the original filed with the court, and that includes a copy of each and every document, DVD and CD annexed to it.  It is not to the point to assert either or both already have some or all of these items.  Each must be served with a true and complete copy of the original document filed with the court.  By 24 June, 2009 he is to ensure that such a complete copy is served on each. 

17. The respondent is to file and serve all affidavits on which she intends to rely by 3 July, 2009;  I extend the date as the applicant’s affidavits were filed out of time.  The ICL has leave to file and serve a subpoena addressed to Victoria Police to produce the records which were adverted to by inference in paragraph (3) of the orders made by me on 7 April, 2009.  Questions of admissibility of evidence contained in affidavits to be relied on at trial will be reserved to the trial. 

I certify that the preceding
17  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.