POYNTON & POYNTON

[2014] FamCA 744

FAMILY COURT OF AUSTRALIA

POYNTON & POYNTON [2014] FamCA 744

FAMILY LAW – Evidence – Admissibility of Evidence

Family Law Act 1975 Poynton

APPLICANT: Ms Poynton

RESPONDENT: Mr Poynton

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: HBC 642 of 2011

DATE DELIVERED: 30 July 2014

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 30 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Bearman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Commission

Orders

1. Orders made in accordance with the minute of order signed by the parties, initialled by me and dated todays date, and engrossed copy attached hereto and marked Exhibit “1”.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. The order made 3 July 2014 for the child B to spend time with the mother be vacated.

IT IS REQUESTED

1. The Independent Children’s Lawyer provide an electronic version of the minute of order in word format within two business days to my associate.

IT IS NOTED

1. Mr C, under oath, gave a formal undertaking to the court not to physically disciple, or threaten to physically discipline, the child B and this undertaking shall remain in place until the child B retains the age of 18 years.

IT IS DIRECTED

1. A transcript of the evidence of Mr C, as outlined in order 4 above, be taken out from 4.25pm until 5pm today and placed on the Court file

2. The Independent Children’s Lawyer meet with the child at a time that is suitable for both the child and the Independent Children’s Lawyer within 14 days and that Mr Fitzgerald explain to the child the nature and extent of this particular undertaking, and formal undertakings in general.

IT IS FURTHER ORDERED

1. Reasons be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 642 of 2011

MS POYNTON

Applicant

And

MR POYNTON

Respondent

REASONS FOR JUDGMENT

1. Between 22 May 2012 and 18 June 2012, Mr Poynton (“the father”) had interviews with Dr D for the preparation of a single expert report which was, in fact, issued in about July 2012.  Those interviews occurred some two years ago.  In paragraph 96 of her report, Dr D observes at that time that:-

   In addition, [the father] expressed that he was concerned that E may have been sexually touched by one of Mr C’s alleged acquaintances who is a convicted paedophile.  I was not presented with any evidence during my inquiries that E had been sexually abused. 

2. Dr D, as far as I can recall, was not cross‑examined or questioned in relation to this aspect of her evidence.  Mr C was not cross‑examined in relation to this alleged acquaintance.  Ms Poynton (“the mother”) sought to ask questions in relation to this, and the father said, when pressed, firstly, that Dr D had misinterpreted that which he had said.  The father had said to her that he was concerned that an acquaintance of Mr C was a paedophile in that he, the father, had been told by up to three people that they believed he (the acquaintance of Mr C) had had underage sex.  The father says that this person was aged 26 (at the time of the alleged incident).

3. I am conscious that the father said that there was no conviction for paedophilia, and from the evidence it is clear that there has never been or is no police inquiry into this person to which the father or any other person is aware, not that any other people are or can be aware, as his name has not been disclosed, and I have not permitted the question to enable that name to be disclosed. 

4. I am conscious that the father, until earlier this year, was represented.  It was open to him over the last two years to make inquiries of those people to whom he spoke and to whom this story or rumour was passed, to provide an affidavit as to what they knew or what they thought they knew.  No material has been provided or presented to this Court. 

5. Tellingly, the father has not informed the mother of the name of this person despite a period of two years having passed, and, further, the father has consented to orders, including final orders, that E live with the mother in the household of the mother and Mr C.  In those circumstances, I am not satisfied that it is appropriate that that question ought to be asked. 

6. I will be directing that a transcript of these reasons be taken out and I will settle the reasons and place them on the Court file.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 30 July 2014.

Associate: 

Date:  30 July 2014