Silver & Pilot (No 3)

Case [2024] FedCFamC1F 17

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Silver & Pilot (No 3) [2024] FedCFamC1F 17

File number(s): MLC 10303 of 2018
Judgment of: BENNETT J
Date of judgment: 29 January 2024
Catchwords:

 FAMILY LAW – PARENTING - where this is the second final hearing of parenting matters in relation to the parties’ twins aged six – where mother seeks to rely on evidence of two former domestic partners of the father as tending to prove that he is someone who engages in family violence – where mother had all such evidence at her disposal and filed at the first final hearing but elected to resolve those proceedings inconsistently with such evidence – where at the last minute the mother now seeks to rely on the evidence of two previous domestic partners of the father in the form of their affidavits filed for the earlier concluded proceedings – where the father and Independent Children’s Lawyer say that any probative value of the evidence is outweighed by the time and delay which will be occasioned by affording them an adequate opportunity to respond to the evidence – where rules in relation to notification for tendency evidence under s 97 of the Evidence Act 1995 (Cth) are held not to apply by virtue of the Less Adversarial Trial Provisions – where the evidence in question is relevant and the real issue will be what weight attaches to such evidence as and when the other parties have had an opportunity to respond to that evidence.

FAMILY LAW – PARENTING - Where these reasons set out in detail a history of the matter  
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:

Fowler & Northwood [2022] FedCFamC1A 173

Isles & Nelissen [2022] FedCFamC1A 97

Silver & Pilot [2022] FedCFamC1F 438

England & Harrison [2020] FamCA 1083
Division: Division 1 First Instance
Number of paragraphs: 82
Date of hearing: 15 May 2023, 16 May 2023
Counsel for the Applicant: Mr Hutchings
Solicitor for the Applicant: Heinz Law
Counsel for the Respondent: Mr Levine
Solicitor for the Respondent: Matrix Legal
Counsel for the Independent Children's Lawyer: Dr Alexander
Solicitor for the Independent Children's Lawyer: Sarah Lia

ORDERS

MLC 10303 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SILVER

Applicant
AND:

MS PILOT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

16 MAY 2023

THE COURT ORDERS THAT:

1.This matter be allocated a hearing estimated to take 12 days in my 2024 calendar when it is set subject to any earlier hearing day becoming available in 2023 whereupon the parties will be notified.

AND UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 applies to any cross-examination occurring in the proceedings on or after 11 September 2019;

And further noting that the parties have been advised by the court:

(a)that pursuant to those requirements, neither parent…

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AGLC
Silver & Pilot (No 3) [2024] FedCFamC1F 17
Case
[2024] FedCFamC1F 17
Decision Date

CaseChat Overview and Summary

In Silver & Pilot, the Federal Circuit and Family Court of Australia was asked to determine whether the mother could rely on evidence from the father’s former domestic partners in a parenting matter involving their six-year-old twins. The father and the Independent Children’s Lawyer objected to the mother’s attempt to introduce this evidence, arguing that the mother had previously disregarded the evidence and had agreed to orders inconsistent with it in earlier proceedings. The court was required to decide whether the mother could rely on the evidence and, if so, what weight should be given to it.

The court found that the evidence was relevant and should be considered in the case. However, the court noted that the time and expense of expanding the final hearing to include the evidence from earlier proceedings would be significant. The court held that the requirements of section 97 of the Evidence Act 1995 (Cth) did not apply due to the Less Adversarial Trial Provisions. The court allowed the mother to rely on the evidence but emphasized that the real issue would be the weight given to the evidence once the other parties had an opportunity to respond. The court ordered that the matter be allocated a hearing estimated to take 12 days in 2024, and that the mother apply to Victoria Legal Aid for funding for the final hearing.

The court further ordered that the requirements of section 102NA (2) of the Family Law Act 1975 would apply to the proceedings, prohibiting personal cross-examination by the parents. The court also fixed the costs thrown away by the father and the Independent Children’s Lawyer due to the adjournment and reserved the question of the mother’s liability for those costs. The court ordered the mother to file and serve a Financial Statement and an affidavit setting out her financial circumstances by a specified date. The court granted liberty to apply in relation to reserved costs or payment of outstanding costs and the readiness of the matter for trial.

Orders

Orders of the court

MLC 10303 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR SILVER

Applicant

AND:

MS PILOT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

16 MAY 2023

THE COURT ORDERS THAT:

1. This matter be allocated a hearing estimated to take 12 days in my 2024 calendar when it is set subject to any earlier hearing day becoming available in 2023 whereupon the parties will be notified.

AND UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 applies to any cross-examination occurring in the proceedings on or after 11 September 2019;

And further noting that the parties have been advised by the court:

(a) that pursuant to those requirements, neither parent may cross-examine the other parent personally;

(b) that pursuant to those requirements, any cross-examination of either parent may only be conducted by a legal practitioner acting on behalf of the other party;

(c) as to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and

(d) that a copy of these orders will be provided by the court to Victoria Legal Aid which administers the said scheme.

IT IS FURTHER ORDERED THAT:

2. The requirements of s 102NA (2) of the Family Law Act 1975 will apply to this proceedings.

3. The mother make application to Victoria Legal Aid for funding pursuant to s 102NA (2) for the final hearing of this matter.

4. The literature published by the Court, being Document 4 (Family Violence Information Sheet) and Document 5 (Family Violence – Personal Cross-examination Ban) be annexed to this Order.

5. Notwithstanding rule 8.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the mother is at liberty to rely on the evidence of Ms G and Ms K and the parties are at liberty to rely on evidence in earlier proceedings concluded on 19 October 2020.

6. The costs of the father thrown away by reason of the adjournment be fixed in the sum of $12,692 and the question of the mother’s liability for such costs be reserved pending compliance by the mother with paragraph 8 of this Order.

7. The costs of the independent children’s lawyer thrown away by reason of the adjournment be fixed in the sum of $5,087 and be reserved on the same terms as the costs of the father thrown away.

8. By not later than 5.00 pm on 23 May 2023 the mother file and serve a Financial Statement and an affidavit setting out all and any other information necessary, for the Court and the other parties to understand her financial circumstances.

9. There be liberty to apply in relation to reserved costs or payment of outstanding costs, such application can be made before me by arrangement with my associate – save that only the independent children’s lawyer may approach my associate seeking a day for hearing.

10. There be liberty to apply generally in relation to readiness of the matter for trial.

11. The Order made on 15 May 2023, in relation to payment out by the mother’s practitioner of one half of monies received by them from or on behalf of the mother to the practitioners for the father and the independent children’s lawyer, apply in relation to any order for costs which I make as a result of the cost application made today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 5 May 2023, the solicitor for the mother served the father and the Independent Children’s Lawyer with a “Notice of Intention to Adduce Tendency Evidence” which, omitting formal and irrelevant parts read:I [the mother] give notice under subsection 97(1) of the Evidence Act 1995, that I intend to adduce evidence of character, reputation, conduct or tendency to prove that [the father] has, or had, a tendency to act in a particular way, or to have a particular state of mind.Evidence requiredAs required by regulation 6 of the Evidence Regulations, (a) the substance of the evidence of the kind referred to in subsection 97(1) of the Evidence Act 1995 that the mother] intends to adduce is that [the father] has committed acts of domestic violence against his relationship partners and family members and has a tendency to so act. He also will torture and kill animals. The evidence which is sought to be adduced is contained in Exhibits [MP] 39, 40 and 41 of the Applicant’s trial affidavit dated 25 April 2023, which has been filed and served upon the [father].Character, reputation, conduct or tendency1. [the father] has committed acts of domestic violence against his relationship partners.2. [the father] has a tendency to commit acts of domestic violence against his relationship partners.3. [the father] would act in a controlling manner to his relationship partners.4. [the father] has poor impulse control.5. [the father] will be willing to physically assault and/or threaten and/or abuse family members.6. [the father] would stalk relationship partners.7. [the father] would torture and kill animals. The evidence referred to is annexed to the mother’s affidavit of evidence in chief. An affidavit by Ms G sworn 23 July 2019 is annexure “[MP39]” and is 7 pages long. An affidavit by Ms K affidavit sworn 2 August 2019 attaches 18 closely typed pages in stream of conscious style and is annexure “[MP40]”. There is a second affidavit of Ms K sworn or affirmed on 22 April 2020 and is 30 pages in length including annexures and that document is annexure “[MP41]” to the mother’s affidavit of evidence in chief. I will refer to the affidavits of Ms G and Ms K as “the evidence”. The father denies the allegations of the mother and his former partners as to family violence. The father and the Independent Children’s Lawyer object to the mother being able to rely on the evidence. The basis for the objection is that this was evidence in earlier proceedings which were concluded on the basis that the mother consented to orders which were entirely inconsistent with the evidence in her case, including the evidence of Ms G and Ms K, and the mother ought not to be permitted to expand these second proceedings to encompass evidence in the first proceedings. Further, the mother had not introduced this evidence to expert witnesses in the second proceedings, including asking questions of the single expert witness, psychiatrist Dr PP. The mother failed or neglected to apply in a timely manner for leave to adduce the evidence. She sought to introduce this evidence at the last minute, contrary to a clear statement in pre-trial directions made on 10 August 2022 that evidence from earlier proceedings could not be relied upon. Finally, that the time and expense of expanding the final hearing in this case to include evidence in the concluded proceedings, and thereby necessitating an adjournment with all the extra legal costs that will incur, is a waste of time when viewed in the context of the mother’s willing disregard for that evidence when she consented to the Final Orders in October 2020.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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