Paintal & Paintal (No. 2)

[2021] FamCA 124

FAMILY COURT OF AUSTRALIA

Paintal & Paintal (No. 2) [2021] FamCA 124

File number(s):	CAC2732014
Judgment of:	GILL J
Date of judgment:	15 March 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – refusal of the father to answer questions of the Independent Children’s Lawyer in Final Defended Hearing – contempt – whether the affidavit material of the father affirmed by him will be taken as admitted in the child-related proceedings
Legislation:	Family Law Act 1975 (Cth) s 69ZN
Number of paragraphs:	20
Date of hearing:	15 March 2021
Place:	Canberra
Solicitor for the Applicant:	Self-representing
Counsel for the Respondent:	Ms Treherne
Solicitor for the Respondent:	Jeanine Lloyd & Associates
Solicitor for the Independent Children's Lawyer:	Legal Aid ACT

ORDERS

CAC273/2014

BETWEEN:

MR PAINTAL

Applicant

AND:

MS PAINTAL

Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	15 MARCH 2021

THE COURT ORDERS THAT:

1.Should the father continue to refuse to answer the questions of the Independent Children’s Lawyer, his affidavit material as affirmed by him will not be taken as admitted in the child-related proceedings.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

EX-TEMPORE REASONS FOR JUDGMENT

GILL J

1. The father has last week indicated that he will not answer any questions that are put to him directly by the Independent Children’s Lawyer (ICL), Ms McGregor. 

2. Ms McGregor is appointed as the ICL in these proceedings and appears in these proceeding.  Accordingly, in the conduct of the proceedings, it will be necessary should Ms McGregor have any questions for the father to be able to answer those.  The father has indicated that he will not answer those questions, even if it results in him being dealt with for contempt and imprisoned.  The father reaffirmed that position this morning in the witness box and explained the reasons for declining to answer any direct questioning from Ms McGregor.  To be clear, when the father has indicated that he will not answer any questions coming directly from Ms McGregor, he has further indicated that he has no objection to anybody else putting the questions on Ms McGregor's part.  He simply refuses to answer any questions that might be asked by Ms McGregor directly.  He gave a number of reasons which included the following.

3. He alleged that a submission made by Ms McGregor in September 2019 was a lie and had misled the Court.  The particular submission identified was Ms McGregor’s submission as to the father holding properties in India, the subject matter of those proceedings was related to whether or not permission would be given for the child, the subject of proceedings, to travel to India with the father.  Accordingly, the issue of whether or not the father holds property in India was a matter of potential relevance.  It might be noted that the mother's position at the same hearing was to assert also that the father held property in India.  The father asserts that he does not hold any property in India and hence, the subject matter of the submission was untrue.  It is, however, a matter that I am advised remains an issue in these proceedings.  There is certainly no indication that if it is in fact untrue, that the ICL knew it at the time to be so.  The matter raised by the father under those circumstances does not found a basis to criticise the ICL. 

4. The father also asserted that the ICL made submissions against the father's application to travel to India with X.  This is in fact the case.  The ICL did not support such travel, but again, this does not found a basis to criticise the ICL.

5. He further sought to criticise the ICL’s pursuit of subpoenaed records from the Domestic Violence Crisis Service (DVCS) in these proceedings, but her asserted failure to, at the same time, pursue subpoenaed records from Child and Youth Protection Services (CYPS).  It may be observed that no basis is put forward as to the impropriety on the part of the ICL in the pursuit of records from the DVCS.  It may also be observed that if CYPS records are important in the proceedings, it was open for other parties to pursue a s 69ZW Order or the issue of a subpoena for such records to be produced.  I understand that records have been produced from CYPS in the proceedings.  On the limited information available to me, I am not prepared to find any criticism of the ICL at this point as being appropriate in relation to this matter.

6. There is further complaint made that the ICL forwarded financial documents provided by the father to the ICL in relation to his application to travel overseas.  He complains that the ICL forwarded those documents to the mother’s then lawyers.  Again, this cannot be a matter of criticism of the ICL. 

7. Further, the father complains that the ICL is biased, with an implication that she is racist in her views towards him.  Those complaints are not, at this stage, made out.  It may be observed that even if they were made out, they are not the basis to decline to answer a properly put question by the ICL but in any event, the criticisms put forward by the father have not been established.  The question then arises as to what is the appropriate remedy to deal with this dilemma. 

8. The father was warned that a potential outcome of his position that he will not answer questions posed under cross-examination by the ICL is that his affidavit may not be read on the basis that he was not making himself available for cross-examination.  The father asserted that he is making himself available for cross-examination as the only limitation he places upon it is the ICL asking him questions directly.  The father has raised no objection to being questioned by the mother's counsel and no objection to the ICL’s questions being relayed by some other person.  However, at its heart, this is still a refusal to make himself available for cross-examination in the appropriate sense. 

9. The mother has indicated some opposition to the father's material not being read in the proceedings.  Sensibly, the mother’s counsel noted that there are property aspects of the proceedings in which the ICL has little interest (although the ICL indicated that simply because a matter relates to property does not mean that it does not touch upon X’s best interests).  However, it may be observed that the ICL is likely to have little interest in the property aspects of the proceedings, those being mostly the province of the mother and the father.  The mother noted some hypothetical disadvantage with the father's material not being read in the proceedings on the basis that there was an intention to pursue the father in cross-examination, presumably based in part on the affidavit material that he has filed in respect of the children's matters.  Although, in these unusual circumstances, counsel for the mother sensibly expressed some uncertainty as to whether or not this mounted to an ultimate disadvantage, on balance, the mother was resistant to striking out of the father's affidavit material due to these particular concerns. 

   What then are the range of remedies?

10. One of the potential remedies remains determining that those aspects of the father's affidavit related to the children's proceedings are not taken as read in the children's proceedings. It may be observed that there are different regimes in place for the admission of evidence in property proceedings and children's proceedings in any event. No order has been made to apply the evidential provisions in relation to children's proceedings to the property proceedings, so there is initially some distinction between the evidence being used for those two purposes in any event.  The appropriateness of an Order that the material not be read in the children's proceedings is that it is the children's proceedings that marks the matters of concern to the ICL and it is the failure to submit to cross-examination from the ICL about those matters which has the adverse impact on the case.

11. A different remedy would be to allow the father to read the whole of his affidavit material in so far as it is otherwise admitted and, on failing to answer questions from the ICL, to deal with him for contempt.  One power under contempt is a power of incarceration which the father has indicated will not change his position.  This leaves the Court in the position of anticipating that even if the powers of contempt are used, it will not remedy the effect of the father's refusal to answer questions. 

12. Counsel for the mother pointed to a second remedy being available, that is in relevant implications being drawn at the close of the proceedings in respect of how the evidence is to be dealt with by virtue of the father's failure to submit to questioning.  Aside from these matters, no other solution was raised. 

    The question then is what should be the remedy? 

13. The father has sought the exercise of jurisdiction under the Family Law Act1975 (Cth) by his Initiating Application of 3 May 2017 in the Federal Circuit Court. The position that he now adopts is a distortion of the trial process which has been initiated by him. The trial process is heavily reliant on the filing of affidavit material and the testing of that material by cross-examination as essential elements of fact-finding in cases involving disputed facts such as here. The submission by a party to cross-examination is not a voluntary process once affidavit material is to be relied upon by that party. In these proceedings, the father seeks to rely upon hundreds of pages of material that relate primarily to the child-related matters, and yet, he will only submit to questioning in a qualified manner, refusing to answer questions from the ICL, with such refusal not being grounded in a claim of privilege or an assertion of an impropriety in the particular questions that are to be asked. That constitutes a distortion of that part of the trial process aimed at determining the child's best interests. It is an impermissible distortion that cuts across the statutory function and obligations of the ICL.

14. The most appropriate remedy is that he not be permitted to read the affidavit in the child-related proceedings which would leave his material undisturbed in so far as it is applicable to the property proceedings.  That then would leave the father as not being a witness in the child-related proceedings.

15. Although the mother pointed to a hypothetical possibility of detriment if the father is not a witness in the child-related proceedings, noting by way of example the possibility of admission into evidence of records from third parties such as CYPS, which had been generated by virtue of things said by the father and which reported things said by the father, leaving a position where the father, if not a witness in the child-related proceedings, would not be able to be tested in relation to those comments, the reality is that evidence will not be directly available from the father to support any such hearsay material.  That evidence will not be available because of steps taken by the father in the proceedings in declining to be cross-examined fully.  Under those circumstances, it may be anticipated that caution in accepting hearsay assertions that could have otherwise been supported by the father's evidence would undoubtedly be high. 

16. For these reasons, taking that example as setting out the potential prejudice to the mother at its highest, I do not regard that the mother's case would be unduly prejudiced by refusing to read the father's affidavit material in the child-related case. 

17. It may also be seen that withdrawal of the father's evidence impacts the child proceedings by the removal of a large swathe of evidence that has been put forward to assist in the determination of what would be in the child's best interests. In child-related proceedings, I am to take into account the principles set out in s 69ZN of the Act. It seems to me that in dealing with the current dilemma, it is the first two principles that are most applicable. The first of those principles is directed to the needs of the child. In so far as those needs of the child relate to securing an order that will be in the child's best interests, they are not secured by an asymmetric and unfair hearing that will be the result of admitting the father's affidavit material without a proper submission to cross-examination.

18. I am also under obligation to actively direct, control and manage the proceedings.  That obligation is firstly directed to a fair hearing.  The distortion proposed by the father conflicts with such a fair hearing.

19. The father's position procedurally leaves no perfect outcome.  It is undesirable to see the removal of potentially relevant evidence on the question of what is in the child's best interest.  However, in securing a proper fair hearing of the matter that is the result that is brought about by the actions of the father. 

20. Accordingly, it is ordered that, should the father continue to refuse to answer the questions of the ICL, his affidavit material as affirmed by him will not be taken as admitted in the child-related proceedings.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       16 March 2021