Segur v Segur - [2010] FamCA 556

FAMILY COURT OF AUSTRALIA

SEGUR & SEGUR

[2010] FamCA 556

FAMILY LAW – EVIDENCE – parenting and financial proceedings – application to admit rules of evidence that would otherwise be non-operative under div.12A to prevent separate hearings – modest pool of assets for division – whether a Magellan case is an “exceptional circumstance” pursuant to s.69ZT(3) – purpose underlying in the Rules to resolve the matter in a just and timely manner

Family Law Act 1975 (Cth), ss 69ZM, 69ZN, 69ZT, 75(2)
Family Law Rules 2004 (Cth), r.1.04.

R v Kelly (Edward) [2000] QB 198

APPLICANT:

Ms Segur

RESPONDENT:

Mr Segur

INDEPENDENT CHILDREN’S LAWYER:

Ms F Carlton

FILE NUMBER:

MLC

11159

2008

DATE DELIVERED:

3 February 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

3 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms L. Colla

SOLICITOR FOR THE APPLICANT:

JA Middlemiss

COUNSEL FOR THE RESPONDENT:

Mr J. St John SC

SOLICITOR FOR THE RESPONDENT:

McDonald Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Laidlaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Victoria Legal Aid

Orders

IT IS ORDERED:

That by way of compliance with Rule 19.04 of the Family Law Rules 2004 by not later than 12.00 noon Friday 5 February 2010, the practitioner for each of the mother and father provide notice in writing to his/her client of:-
a)the actual costs incurred by the client up to the final trial;
b)any expenses paid or payable to an expert witness or, if those expenses cannot be ascertained, after the making of all reasonable enquiries, an estimate of any expenses;
c)the costs payable for each day of the trial;
d)the estimated length of the trial;
e)the date of payments made and the source of the funds for the costs paid or to be paid so that:-
i.if costs have been paid by cheque, details must be provided of the account on which the cheque was drawn;
ii.if costs have been paid by credit card, the details must identify the finance provider and number and name of the credit card facility; and
iiiif costs have been paid in cash, the details must identify the payer.
That contemporaneously with compliance by the practitioner concerned with paragraph 1 of this Order, the practitioner provide a copy of the notifications to my Associate, by facsimile or email and to the solicitor for the other parties.
That by Friday 5 February 2010 the practitioners for the husband provide any schedule to the father’s last filed financial statement.
That by 12.00 noon on Thursday 4 February 2010 each party provide to the other and to my Associate a list of affidavits and other evidence which that party proposes to rely upon at the final hearing.
That by 12.00 noon on Friday 5 February 2010 each party advise all other parties to the proceedings of the witnesses they require for cross-examination.
That the parties do all acts and things necessary to ensure that each of them and their advisors have an opportunity to view the VATE interviews produced on subpoena to the Court and IT IS REQUESTED that the Registry Manager allocate appropriate resources for the purpose of viewing.
That there be leave to the independent children’s lawyer to issue such subpoenae to attend Court and give evidence or produce documents as she considers appropriate.
That by 4.00 pm on Thursday 4 February 2010 each party identify, on a page by page basis the documents from the documents produced on subpoena will be referred to in the running of the case and IT IS REQUESTED that my Chambers attend to the preparation of a Court Book containing copies of all such documents and do so notwithstanding any issues as to admissibility. IT IS NOTED that the documents will not be evidence in the trial unless tendered in the ordinary course of proceedings.
That the husband and the wife each file an outline of case including a minute of orders sought by not later than 4.00 pm on Thursday 4 February 2010 and that the independent children’s lawyer do likewise by 12.00 noon on Friday 5 February 2010 save that her outline also be accompanied by a chronology of relevant dates and events.
That the case outline document summarise the arguments in support of each party’s case including, but not necessarily limited to, the following issues:-
a.Whether the presumption in relation to equal shared parental responsibility is rebutted and, if so, on what basis; and
b.Whether it is the best interests of the children B born … December 1999, H born … December 2001 and G born … July 2005 to spend equal time with each parent and, if not, why not; and
i.Whether it is the best interests of the children for the parent with whom the children are not primarily resident to be entitled to spend substantial or significant time to spend equal time with the children and, if not, why not; and
ii.What parenting orders are sought by that party;
iii.Why the parenting orders sought by that party are in the best interests of the children having regard to the primary and additional considerations set out in s60CC(2) and s60CC(3) of the Act.
That pursuant to s69ZT(3) the provisions of Evidence Act 1995 referred to in s69ZT(1) apply to the final hearing of this matter.

AND THE COURT NOTES that this matter is listed for final hearing to commence as the first matter on 8 February 2010 at 10.00 am.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11159 of 2008

MS SEGUR

Applicant

And

MR SEGUR

Respondent

REASONS FOR JUDGMENT

(settled from transcript)

In anticipation of a trial which will commence before me on 8 February 2010 in the Magellan list, counsel for the parties have agreed upon or had input into various directions and orders which are set out prior to these reasons. It will be the final hearing of the parties’ competing applications for parenting orders as well as the final hearing of competing applications for orders effecting a final alteration of property interests. The outstanding issue upon which it is appropriate for me to provide some reasons, is an application by the husband pursuant to s 69ZT(3) that the provisions of the Evidence Act 1995 (“the Evidence Act”) should apply to these parenting proceedings.
This parenting proceedings concern B born in December 1999, H born in December 2001 and G born in July 2005 and were instituted after the coming into operation on 1 July 2006 of the amendments to practice and procedure introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”). Accordingly, these are proceedings to which the provisions of div.12A of Pt.VII of the Family Law Act1975 (Cth) (“the Act”) apply. As such, I will have regard to the stated principles contained in the amendments which include considering the impact of the parenting proceedings on the child, ensuring that the parenting proceedings are conducted in a way which will promote cooperative and child focussed parenting and proceeding without undue delay and with as little formality and legal technicality as possible.[1] There are also evidentiary implications for parenting proceedings under Pt.VII of the Act which are not applicable in relation to the property proceedings under Pt.VIII of the Act.
[1] s 69ZN Family Law Act 1975 (Cth).
Section 69ZT excludes the operation in these parenting proceedings of various divisions and chapters of the Evidence Act 1995 (Cth) which deal with general rules about giving evidence[2], cross examination[3], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character.
[2] With the exception of ss.26, 30, 36
[3] with the exception of s 41 relating to improper questions
Section 69ZM(2) provides that the parties can consent to the provisions of div.12A being applicable to the property proceedings. No such consent has been forthcoming in this case with the result that various divisions and chapters of the Evidence Act do not apply to the determination of parenting proceedings under Pt.VII but do apply to the determination of the property proceedings under Pt.VIII.
The husband applies for all of the evidentiary provisions which are not operative pursuant to s.69ZT should apply to this case. The mother does not oppose the father’s application, neither does the Independent Children’s Lawyer.
Section 69ZT(3) provides that:-
[…] the court may decide to apply one or more of the provisions of a Division or Part [of the Evidence Act] mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
It follows that I have to consider what constitutes “exceptional circumstances” for the purpose of s.68L(3)(a).
In R v Kelly (Edward) [2000] QB 198, Lord Bingham of Cornhill CJ, considered “exceptional circumstances” in the context of imposing a life sentence for intentional wounding. His Lordship delivered the judgment of the court and stated [at page 208]:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
Lord Bingham of Cornhill CJ’s description of “exceptional” is of assistance to me and I adopt it.
This is a parenting matter which involves allegations of sexual abuse, physical abuse and psychological abuse of children. The wife alleges that the husband has sexually abused the oldest child. The husband denies having done so. The husband alleges that the wife has assaulted the children and is psychologically abusive of them including, but not limited to, maintaining false allegations of sexual abuse against him. The wife denies those allegations.
It is not clear to me whether the wife will conduct her case on the basis that the court should be satisfied that unsupervised time between the husband and the children or the children residing with the husband will carry with it an unacceptable risk of sexual abuse. The last orders sought by the wife include provisions which I would not expect to see in a case where the proponent alleged that there was an unacceptable risk of sexual abuse of the children into the future. Ms Colla, counsel for the mother, says that she does not have all her brief yet so cannot inform me. However, come what may, the history of sexual abuse allegations is going to be relevant.
The proceedings are in Magellan list of cases which is a list for the determination of matters involving serious allegations of sexual abuse and physical abuse of children. The issues which arise for determination in this parenting case are those which routinely arise in the Magellan list. However, counsel for the father, Mr St John SC, submits that sexual abuse allegations, whilst routinely encountered in this list, are not a routine element of all cases instituted under Pt.VII of the Act in all courts of competent jurisdiction .I accept that submission. Parenting proceedings are instituted and dealt with by State Magistrates’ Courts, the Federal Magistrates’ Court and this court. When Magellan cases are looked at as a proportion of all parenting cases instituted in all courts, they represent a very small number. I cannot say precisely what proportion of cases it would be but I am confident that cases involving allegations of sexual abuse, physical and psychological abuse are a small enough proportion to qualify as “which is out of the ordinary course, or unusual, or special, or uncommon”. Further indicia of extraordinary features of Magellan cases is that there are special protocols which apply to cases in this list in relation to cooperation and forbearance by child welfare services, judicial management and the allocation of resources within the court, including judicial resources and the resources of the child dispute services (family consultants). There are exceptions applicable to Magellan cases in relation to legal aid funding which remove caps applicable to all other litigants eligible for legal aid funding. There is Commonwealth government funding quarantined for legal assistance for the Magellan lists in each State. These measures are in place because the children in these matters who are recognised by the court as being particularly vulnerable.
That is not to say that I would regard every Magellan case as being a case where an order should be made under s.69ZT(3). There are further matters, which I come to below, which cumulatively, satisfy me of that the circumstances are exceptional. There are also the matters under s.69ZT(3)(b) to be considered before such an order can be made. Most times there will be little or no prejudice to a party in a Magellan case by the operation of s.69ZT(1). In fact, litigants may be advantaged by its operation in terms of costs and length of proceedings.
Mr St John submits that the wife’s allegations against the husband carry serious implications for his client’s future employment which is in the health care industry. He is a nurse. Therefore, the findings made by the Court (on the evidence) will have implications for the family over and above impacting on the children’s time or residence with the husband. If findings made in this proceeding include a finding that time between the husband and the children exposes the latter to an unacceptable risk of abuse into the future, Mr St John asks me to infer that the husband’s employment will be adversely affected. There is no scope, within this pre-trial mention of the matter, for me to require further detail. No party sought to contradict the statement. I take Mr St John’s statement at face value. The husband’s future employability is serious for the husband as well as being a matter relevant to a final alteration of property interests, in particular, pursuant to s.75(2).
It was not urged upon me by any party that it is feasible to compartmentalise the evidence relating to parenting issues from the evidence relating to financial issues. I cannot see how that would work anyway, particularly having regard to evidence giving rise to findings of credit. The function and advantages which a trial judge has to assess witnesses give evidence is not an exercise in compartmentalisation or division.
Mr St John reminds me, and I accept, that the pool of assets divisible between the parties is of modest proportion. He submits further that, if two sets of rules evidence are to be applied in this case, that will involve the parties in two separate hearings. One hearing in relation to parenting issues followed by a separate hearing in relation to adjustment of property interests. Having regard to the fact that evidence might be admissible in the parenting proceedings which is inadmissible in the property proceedings, the two hearings should probably be heard by different judicial officers. None of the parties urge that outcome upon me. An underlying philosophy as to practice and procedure in this Court is found in r.1.04 of the Family Law Rules 2004 which specifies the main purpose of the Rules as being “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. It is stated in the Rules for good reason, I do not propose to abandon the philosophy now. It would be financially ruinous to impose two final hearings on this family.
Taking into account the implications of the proceedings, the importance of the evidence and the prohibitive costs involved in requiring this family to submit to, potentially, two final hearings of which only one is docketed to a judge, I am satisfied that the order sought by the husband is warranted. The effect is that the same principles of evidence apply to the parenting matter and the property matter.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett.

Associate:

Date: 30 June 2010