Silver & Pilot (No 3)
[2024] FedCFamC1F 17
•29 January 2024
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 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. IT IS NOTED that the effect of this Order is, if the mother’s practitioner or counsel receives or holds any funds from the mother they will not apply more than one half of such monies towards payment of the mother’s legal expenses. In the case of counsel, he deduct from monies held in trust by his clerk his fees for preparation of this matter for final hearing and the appearance on 15 May 2023.
12.The objection by the father and independent children’s lawyer for the admissability of the evidence of Ms G and Ms K be over-ruled and, subject to compliance with the Rules of Court, all parties may rely on evidence relied upon by him/her in the proceedings concluded on 19 October 2020.
13.The application by the mother for leave to make an oral application for costs for supervised time between the children Y and X, both born 2017, and the mother be and is hereby dismissed.
14.My reasons for decision will be published to the parties subsequently.
AND IT IS NOTED BY THE COURT that, in the event that a party fails to attend a hearing or remain in court when required to do so or defaults in the filing of documents or things required of him/her the defaulting or non-attending party should assume that the Court may proceed to finally determine the matter without any further input by the non-attending or defaulting party.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
An issue arises on the first day of a final parenting hearing as to the admissibility of statements made by two former domestic partners of the father. The father and the Independent Children’s Lawyer object to the admissibility of the statements made by the former domestic partners of the father on the basis that there has not been compliance with rules in relation to tendency evidence and r 8.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Family Law Rules”).
If I uphold the objection, the matter can proceed to a final hearing now. If I do not allow the objection, the father seeks that the final hearing be adjourned so that he can prepare further material and structure his case to have regard to the evidence of his two former domestic partners. This is a case with a long history and for ease of reference I will set out relevant historical matters as I see them. Ultimately, however, it has been my decision that the rules in relation to tendency evidence do not apply and that the evidence of the father’s two former domestic partners is relevant to the matters in issue in these proceedings. Relevant evidence may be accorded various degrees of weight. The history in this matter is likely to have a significant bearing on the weight to be accorded to the evidence of the father’s two former domestic partners. This is because that evidence was available to the mother in the first set of final parenting proceedings but willingly disregarded by her.
This is the second set of contested proceedings for parenting orders. The first proceedings were initiated on 18 September 2018 and concluded on 19 October 2020. This second round of proceedings were instituted on 30 May 2022 and as indicated, have reached the first day of the final hearing estimated to take 4 to 5 days. Both proceedings have involved the mother making allegations of family violence by the father against her and the children including sexual abuse of the children and preventing the father from spending time with the children. The father alleges that the mother is undermining of, and opposes, him having any meaningful involvement in the children’s lives and that her allegations have no foundation in fact. The last proceedings were resolved when Final Orders were made, by consent, on 19 October 2020 which was the first day of the final defended hearing. The Final Order provided that the children live with the mother and spend overnight, unsupervised and significant time with the father.
This second set of proceedings were initiated by the father after the mother unilaterally stopped the time between the children and the father in May 2022. Both proceedings have utilised a great deal of resources of the child welfare authorities, police, child court experts, other professionals and, of course, the court. There have been proceedings on foot for most of the children’s lives. There are serious allegations of family violence and child abuse made in this matter. I have summarised some of those allegations in Silver & Pilot [2022] FedCFamC1F 438. I incorporate those reasons into these reasons.
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 required
As 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 tendency
1. [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.
If the evidence is admitted, it is understandable that the father would seek to respond with evidence not yet filed in his case including, but not limited to, evidence by his current partner and his former wife, both of whom were seated in Court with him at the commencement of the final hearing. Presumably the father and the Independent Children’s Lawyer would each also seek to rely on evidence from the earlier concluded proceeding including, but not limited to, that of Dr F, who assessed the mother and the father, and Family Consultant Ms B who prepared two reports. Given that this case was estimated by the parties to take 4 to 5 days, the recasting of the father’s case will necessitate an adjournment of this final hearing. Unfortunately, the adjournment will lead to what is likely to be a very significant delay in allocation of another final hearing date for the family, not to mention significant additional expenses for the parties. The next final hearing will need a longer allocation of time, not just for further witnesses but potentially for an examination of the multitude of allegations from the first proceedings.
Whilst a long delay before a final hearing is regrettable, my observation is that the mother could have avoided the adjournment and consequent delay and still rely on the evidence of Ms K and Ms G if her case had been conducted more diligently by her legal representatives.
In the first proceedings, the mother had multiple legal representatives. Her solicitors for the trial were QQ Lawyers. She was represented by Mr RR of Counsel. In the second set of proceedings Matrix Legal have represented the mother and retained Mr Levine of Counsel. Each parent has received a Costs Notification. According to the Costs Notice filed 15 May 2023, the mother’s legal costs payable prior to the final hearing, excluding liability for costs ordered to be paid to other parties, is $86,500.00 The father’s costs are $153,538.88 for the first proceedings and a further $61,368.79 for these proceedings, not including a further 50,000.00 of estimated legal costs for the five day hearing. The father’s Costs Notice also states that $18,870.32 (per costs schedule $11,217.40) was incurred in relation to the mother’s Notice of Appeal filed 10 August 2022.
Ms Sarah Lia has been Independent Children’s Lawyer throughout both proceedings.
It is necessary to give some history of the proceedings to understand the context in which the evidence is sought be to adduced.
The mother and father are both 49 years old. The proceedings concern twin boys aged 6 years, who are the only children of either parent. The father is self-employed and lives near City N. The mother is not employed outside the home and lives in City N. Pursuant to Interim Orders made by Justice Carter on 22 July 2022, the children live with the father and spend supervised time with the mother for 2 hours each alternate Saturday at a local contact centre. The family is eligible for one further session of supervised time after which they will, presumably, have to retain a private supervisor or be accepted into another contact service.
The parents commenced a relationship in 2014 but maintained separate residences. The father had recently been assaulted by his then partner, Ms K, who is one of the women whose evidence the mother seeks to rely upon. The father and Ms K had known one another since they were teenagers but reconnected in 2007 and then as a couple in 2009. At that time, Ms K was 35 years old, unemployed and facing criminal charges relating to sexual misconduct. The father was 37 years old, had married but separated from his wife, Ms SS, and had recently concluded a relationship with a woman named Ms TT. Ms K pleaded guilty to criminal charges and was sentenced to a term of imprisonment. The father kept in contact with Ms K during her incarceration including her successful appeal against sentence and ultimate release. She served a period of incarceration and was released a few months after her appeal (in 2011).
Prior to reconnecting with the father, Ms K was aware of the father having had a relationship with Ms G with whom she had attended school. The father and Ms G were in a relationship from 1991 until about 1996 including residing together for some of that time at various abodes. Ms G is the other woman on whose evidence the mother seeks to rely.
The father alleges that he and the mother were only ever in an on again off again relationship from 2014 until he says that they separated in 2016. In 2017 the children, twins, were born. After leaving the hospital they resided with the mother. The father had overnight time with the children. From March 2018, the mother commenced to restrict the father’s time with the children. In April 2018, the mother instituted family violence proceedings against the father. In September 2018, the father instigated proceedings for parenting orders in the Federal Circuit Court of Australia (as it was then known) seeking week about care. Contemporaneously, he filed a Notice of Risk alleging that the mother had unilaterally suspended his time with the children, that she had been depressed and her animal may be a danger to the children. The mother’s Response was filed on 20 September 2018 and sought that the children live with her and the father undertake a psychiatric assessment and a hair follicle test. Contemporaneously, she filed a Notice of Risk alleging verbal, physical and other violence by the father to her and the children.
An Independent Children’s Lawyer was requested on 27 September 2018 and Ms Sarah Lia was subsequently appointed. In October 2018 the father produced clear drug screen tests. In late 2018, the Department of Health and Human Services (as it was then known) (“the Department”) published a section 67Z Response recommending that the boys live with the mother and that the father spend supervised time with the children as he had not had contact with them for several months and that he have unsupervised time after a suitable period. The Department recorded having received a number of reports regarding the father and his unsuitability as a parent. The Department investigated the allegations and found no evidence to support the concerns and accessed that the notifications were malicious.
On 22 October 2018 orders were made, by consent, for the father to have interim supervised time with the children under the supervision of his parents. There were various reports by the mother and presentation of the boys, or one of them, at hospital whilst in the care of the mother.
In 2019, the mother sought paternity testing for the children. The father was confirmed as the biological parent of the boys.
On 15 May 2019, the mother was restrained from continuing to take the children to a named counsellor.
On 24 July 2019, the mother’s legal practitioner filed the affidavit of Ms G sworn 23 July 2019 which is the evidence upon which she now seeks to rely upon
On 2 August 2019, the mother’s legal practitioner filed an affidavit of Ms K sworn that day.
On 22 April 2020, the mother’s legal practitioner filed a further affidavit of Ms K sworn that day.
In mid-2019 the mother’s complaint of sexual assault against the father was not authorised for charges by Victoria Police. A document prepared by Officer UU detailing reasons for not authorising the charges. Comments were made by Officer UU in relation to the “reliability and credibility of the complainant”, as follows:
“differing versions of complaints, allegations put forward by the complainant ([Ms Pilot]) to investigators, previous reports to Police and multiple agencies with complaints being investigated and no issues re physical, sexual assaults being identified. Timing and motivation considerations re rape allegations being made in the midst of Family Law Court applications (initial report of [sexual assaults] in [late] 2018 made [soon] after accused commented Family Law Court action) re child access”. Allegations being made by complainant going multiple agencies and then allegations retracted by complainant when challenged on specifics, detail. Complainant continued to reside, sleep with the accused post the birth of the children and a significantly long period of time after [sexual] offences allegedly occurred ([…] 2017)”.
In September 2019, Dr D, psychologist, prepared the first Family Report in the matter. He noted at paragraph 44 that if the mother was challenged or not believed “…she became quite agitated, defensive and quite emotional and then was highly critical of some aspect of any person who had challenged or given a different response than she wanted”. At paragraph 47, Dr D noted that “the pattern of the mother's seeming acute self-absorption and that she must be believed.” The children were noted to be relaxed and happy in the care of both parents and to have trust and strong bonding with each party.
Dr D recommended that:
1.the current parenting arrangements remain in force and the parents undertake psychometric psychological testing and counselling
2.the children should not undertake any counselling processes or medical procedures unless in the latter case it is an emergency and that otherwise both parties have agreed in writing to such processes or procedures occurring.
On 12 September 2019, the matter was transferred to the Family Court of Australia (as it then was).
In late 2019, Victoria Police Sexual Offences and Child Abuse members met with the children who made no disclosures and presented with limited verbal ability. The children were 2 years old at that time.
On 5 February 2020, Dr F, consultant psychiatrist, conducted a psychiatric assessment of both parents. The mother stated to the psychiatrist that she was “hoping to enjoy her life (with the children)”, adding that she couldn't reconcile the idea of sharing the children with Mr Silver. She had “no trust in the father , particularly because when the children come back from contact with him, they are confused and report abuse”. The report included that the mother does not feel believed by a number of health professionals including the Department and the Police. When interviewed by such professionals, she said that “they often yelled at her”.
On page 7 of his report, Dr F stated that the mother's “account was at times confused and confusing and her presentation varied across the interview.” He continued that: -
At times she appeared distressed but would soon settle and there was a distinct histrionic air about her... thinking was characterised by numerous concerns and allegations in various forms involving both herself and the children...her account of [Mr Silver] was unrelentingly critical and it was readily evident that she holds him with considerable grievance and enmity being the most constant feature of her presentation throughout the interview. In addition she was inclined to minimise aspects of her earlier traumatic history, overall, her presentation was consistent with someone of considerable vulnerability with suggestions of a core unstable personality style, and a meshed relationship with children with what appears to be frequent discussions and direct questioning of them, using language which would not appear in keeping with their development and young age. Themes of hurt, anger, disappointment were prominent.
In relation to the father, Dr F noted that, following the end of his relationship with the mother:
The father has been the subject of a series of allegations involving the abuse of [Ms Pilot] and more recently the children, nothing the latter allegations continue to escalate in the absence of findings from DHHS and the Police both in respect to the children and [Ms Pilot] herself. [Mr Silver] denies the thrust and detail of the allegations, is saddened by the loss of contact with the children, and at the time of the interview, his presentation would be in keeping with an Adjustment Disorder with Depressed and Anxious Mood now in partial remission.
Dr F concluded that he was left with significant reservations as to the mother’s account and, while she may well be reacting to the severe abuse which she alleges directed towards her by the father, in the alternative, her account was accompanied by a distinct sense of malice directed towards him, stating that:
…Escalating an increase in allegations in my experience made by one party against the other in the absence of evidence point to disturbance of the party making the allegations in relation to their personality functioning and/or mental health. Such behaviour is also called into question that parent's ability to support the children’s relationship with the other parent.
In early 2020, the section 67Z Response authored by Ms VV and Ms WW from the Department was published. The children were assessed to not be currently at an unacceptable level of risk in the mother’s care, however, harm was substantiated based on the likelihood of emotional and psychological harm to the children in the care of their mother. The Department substantiated harm on the basis that the children continue to be exposed to unnecessary medical examinations and discussion around the mother's concerns regarding the father.
The following comments were made by the Department in the section 67Z Response:-
• [Late] 2018: Notices of Risk lodged by both mother and father. Police had not been notified of family violence previously. Father concerned about mother’s history of depression and [an animal] that poses a risk to children. Mother concerned about physical harm to [Y] and [X] by [Mr Silver] (squeezing), emotional and verbal abuse to [Y] and [X] by [Mr Silver] (name calling), physical threats to [Y] and [X] by [Mr Silver] (raising arms and fist aggressively towards children), exposure of [Y] and [X] to family violence, [Mr Silver’s] abuse of his [animal] and corpse of another [animal] found by [Ms Pilot] at his property. Allegations of family violence towards [Ms Pilot] includes — emotional and verbal abuse (name calling) and [Mr Silver] has advised her of physical violence towards a previous partner. [Mr Silver] has made threats to kill [Ms Pilot], has stalked [Ms Pilot]. Allegations that [Mr Silver] is an alcoholic and abuses pain medications ([Mr Silver symptoms]). Environmental concerns for [Y] and [X] at [Mr Silver’s] home (safety issues and dangerous [animal]).
• [Late] 2018: Concerns pertained to an incident during handover of [Y] and [X] for contact. Incident between maternal grandparents and [Mr Silver]. [Mr Silver] was alleged to not be walking straight, yelling at Maternal grandparents, [Mr Silver] attempting to stop maternal grandparents leaving, [Y] and [X] not wanting to go to [Ms Pilot] following contact with [Mr Silver]. Report closed at intake — did not proceed to further investigation.
• [Early] 2019: Concerns pertained to [Mr Silver] being witnessed as aggressively handing over [Y] and [X] to maternal grandparents during supervised contact. [Ms Pilot] noted bruising to [Y] and [X] during bathing following contact with [Mr Silver]. Bruising alleged to one child's [genital area], scratched to one [child] and bruising the one child's buttock’s. Report closed at intake — did not proceed to further investigation.
• [Early] 2019: Concerns that [Ms Pilot] verbally abusing [Y] and [X], swearing at them, calling them arseholes and screaming fuck at them. [Y] and [X] presenting with bruising over past 3 weeks and [Ms Pilot] reporting that [Y] and [X] running around, hurting themselves, bruising to head and legs. [Y] and [X] observed to be screaming when [Ms Pilot] yelling at them. Concerns that [Ms Pilot’s animal is dangerous]. Report closed at intake — did not proceed to further investigation.
• [Mid] 2019 to [late] 2019: Concerns that change of [Mr Silver’s] contact from supervised to non-supervised. Following contact with [Mr Silver] [in mid] 2019, [Y] returned home with [a wound] and saying ‘Dad hit [Y]’. The previous week [Y] and [X] presented with bruises on their bottoms (small and finger like). [Y] and [X] previously had bruises to their [genital area], buttocks and scratch marks. Family violence between parents perpetrated by [Mr Silver]. [Mr Silver] has stopped [Ms Pilot] from taking [Y] and [X] to a therapist. Report closed at intake — did not proceed to further investigation.
• [Mid] 2019 to [late] 2019: Bruising to the child following contact with [Mr Silver] ([Y] […].) [Ms Pilot] asked child about the bruising and child disclosed [Mr Silver] had done it (in relation to bruising to bottom only). [X] presenting with graze and swelling […]. [Ms Pilot] asked [X] what happened, and he said Daddy did it. History of Family Violence perpetrated by [Mr Silver] and he was recently arrested for [a sexual offence]. [Y] alleged to have had a significant bruise in past 3 to 4 weeks alleged to have been caused by [Mr Silver] and this had been reported to SOCIT. Interviews conducted. Report not substantiated and closed.
• [Late] 2019: ongoing concerns for the safety of [Y] and [X] held by [Ms Pilot] who has installed camera's in the home to provide evidence as she has previously been told that there is no evidence. [Y] has placed a pillow over [X’s] head and held it there. [Ms Pilot] has asked [Y] and [X] about this behavior and it was said that it happened in Dad's shed and that he (the child) should put a pillow over mum's face. [Ms Pilot] asked child if someone had shown him how to do it and [Y] stated Dad did (x2). [Y] and [X] are continuing to report being smacked in the chest by [Mr Silver] and [Mr Silver] is driving too fast with [Y] and [X] who report being scared in the car. [Y] reported to have a bruise […] (now two days old, thumb size, very deep and dark in color). Bruise observed following contact with [Mr Silver] the previous Saturday. [X] has finger bruising on his bottom. Reporter advised that [Ms Pilot] has advised she has been told not to report to Police or Child Protection due to not being able to do anything about it as it is not bad enough and [Y] and [X] can't verbalise what is happening. Report closed at intake — did not proceed to further investigation.
• [Late] 2019: The reported concerns pertain to [Y] and [X’s] behaviors following contact visits with [Mr Silver]. [Y] and [X] were reported to be showing physically aggressive and sexualized behaviors. Examples of these behaviors were provided ‘[X] placing a pillow over the head of [Y]’ and one of [Y] and [X] reporting that his “Daddy puts cream on his wee wee”. It was further advised that [Y] and [X] were presenting with bruising around their nappy area caused by [Mr Silver] and that [Y] and [X] were verbalising that they did not want to attend their [Mr Silver’s] home and that [Mr Silver] hits them. The reported concerns appear to have been reported previously.
In the conclusion the writers stated “…the ongoing conflict between [Ms Pilot] and [Mr Silver] is very likely to be negatively impacting on [Y] and [X’s] emotional well-being. It is highly likely that should this continue, [Y] and [X] will experience significant emotional and psychological ham”. It was noted that the mother “does not accept the opinions of medical professionals when challenged and continues to pursue other avenues to “build a case against [Mr Silver]”. Recommendations include that the mother cease to seek unnecessary medical interventions for the children, not question them unnecessarily or ask misleading questions of them. The Department further recommended that handover for contact should be at a contact centre and a communication book used.
On 8 May 2020, the second Family Report was released which, inter alia, recommended that if the Court finds that the father does not pose an unacceptable risk to the children, the children live primarily with the mother and the father spend unsupervised time with the children commencing with one overnight each alternate week and increasing to three out of 14 nights.
By the time the matter was listed for final hearing on 3 August 2020 the mother maintained all her allegations against the father.
The proceedings in which I made Final Orders on 19 October 2021 included serious allegations by the mother that the father had mistreated the children. There were several family reports and assessments prepared for the finalised proceedings. In the section 62G(2) report by Family Consultant Ms B dated 8 May 2020, Ms B evaluated the following:-
97. [Ms Pilot] has made extensive and troubling allegations in relation to [Mr Silver] being a perpetrator of family violence during their relationship and claims that he has exposed [Y] and [X] to abuse during their spend time arrangements whereby they have sustained bruising and possibly been sexually abused. These allegations have appeared to escalate over time and have increased in severity the longer this matter remains in the family court. It is also noted that no concerns were raised in relation to [Y] and [X] or the sexual assault claims in [Mr Silver’s] initial IVO application in 2018.
98. [Ms Pilot] has obtained support for her claims in relation to [Mr Silver] being a perpetrator of serious family violence from two of his ex-partners which on one hand, if accurate, indicates that [Mr Silver] may be a significant risk to [Y] and [X]. One of these partners ([Ms G]), [Mr Silver] was in a relationship over 20 years ago and the other ([Ms K’s]) character is in question given the nature of her [prior] charges and the fact that she was charged with [assaulting Mr Silver] in 2014 […].
99. However, the likelihood that [Ms Pilot] has actively pursued [Mr Silver’s] ex‑partners to support her campaign against him highlights some concern in relation to her behaviour and possibly speaks to some troubling personality vulnerabilities that have been highlighted by both [Dr F] and [Dr GG] in their reports.
100. [Ms Pilot] has appeared relentless with her allegations in relation to [Mr Silver] to services such as DHHS, Police and health services. She has been aggressive and hostile in her approach at times and has been labelled as “manipulative” in terms of getting the desired outcome of ceasing [Mr Silver’s] contact with the children. It has been said that she has provided inconsistent allegations and versions of events to services and the timeline of her allegations are curious, with her allegations regarding sexual assault from [Mr Silver] being raised […] following him lodging family law proceedings. Also, her claim that the twins were allegedly drugged by [Mr Silver] at his first visit with them was unusual given that her concerns were not brought to the attention of health professionals until a few days following the twins returning to her care.
101. [Ms Pilot’s] behaviour in relation to this incident was highly unusual and warrants further exploration. The subpoena material suggests that [Ms Pilot] took the children to the General Practitioner (GP) who did not identify any concerns in relation to [Y] and [X’s] presentation. [Ms Pilot] then appeared to contact the Ambulance who attended and also informed her that the children did not appear substance affected. [Ms Pilot] then attended [FF Health Service] who also reiterated what the GP and the Ambulance staff had already informed her, that the children did not present with any signs of loss of consciousness. However, [Ms Pilot] did not accept this and appeared to demand that they receive a toxicology test to which [Dr HH] at [FF Health Service] refused. This led to [Ms Pilot] becoming heightened and verbally abusive to [Dr HH] and appearing to attempt to manipulate the situation in order to obtain these tests.
102. It appears that [Ms Pilot] has taken the twins to multiple medical appointments and professionals, taken photos, obtained video evidence yet has not been successful in obtaining any evidence that either the Police or DHHS has been able to utilise in relation to her claims against [Mr Silver]. Instead, she has been criticised by DHHS who have substantiated harm against her in their most recent report (released [early] 2020) due to concerns that she is putting the children’s emotional and psychological wellbeing at risk with her behaviour.
103. [Ms Pilot’s] pattern of behaviour with the ongoing allegations against [Mr Silver] could be perceived as amplified hypervigilance in the context of significant family violence concerns and her view that [Mr Silver] presents as a major risk to [Y] and [X] […]. If this is the case, then [Ms Pilot’s] behaviour could be viewed as that of a family violence victim and despairing mother who is determined to protect her vulnerable children from intense danger.
104. Alternatively, [Ms Pilot’s] behaviour could be viewed through a mental health lens - an individual who has experienced a significant trauma with the difficult birth of the twins combined with her personality vulnerabilities whereby she has accepted her version of reality as the correct one. The concern with [Ms Pilot] potential “fixed” version of events is that if it continues, it may create further risk to [Y] and [X] in her care. If she continues to feel that no one is listening to her and that [Y] and [X] are in danger in the care of [Mr Silver], then this could increase the risk for them with her behaviour in trying to keep them safe. This may mean ongoing endless trips to medical professionals in an attempt to gain further evidence or possible a more troubling outcome if these fears become delusional.
105. It is also likely that if she is holding a “fixed” position, [Ms Pilot’s] mental health may deteriorate further if [Y] and [X] continue spending regular time with their father for the foreseeable future. It is expected that this would be very challenging for [Ms Pilot] to manage long term. This is demonstrated with the over reliance on the maternal grandparents to support with the changeovers which places them in a difficult positon and is not appropriate going forward.
106. It has been noted by multiple professionals that [Ms Pilot] has difficulty taking on the advice and perspective of others. This was observed during the interviews whereby she became defensive when the writer attempted to provide some feedback on managing the separation from the twins. [Ms Pilot’s] behaviour appeared manipulative at times during interview in the way she attempted to portray herself as a highly cooperative co-parent, however it appears that she has been quite the opposite with her behaviour of deliberately leaving out important information in relation to the twins and making unilateral decisions in regarding their care such as enrolling them in childcare without the consent or knowledge of [Mr Silver].
..
114.If it is determined that [Mr Silver] is not considered to be a risk on the grounds of family violence and [Ms Pilot] cannot support the children’s relationship with him as they move through this developmental stage, then her behaviour is obstructive and needs to cease.
115.If she continues this behaviour, consideration needs to be given to whether she is the best parent to have primary care of [Y] and [X]. Once [Y] and [X] have moved through this developmental stage they could begin to resist and refuse a relationship with their father and this would likely be encouraged by [Ms Pilot].
116.In summary, this is a highly complex matter involving two very vulnerable twins covering multiple risk domains. There are numerous affidavits that have been submitted in support of each parent’s narrative and the dispute is entrenched. This matter will require the court to carry out a testing of the evidence in order to ascertain the level of risk that [Mr Silver] poses to [Y] and [X] as it is unable to be categorically determined in the scope of this assessment.
Dr F’s report was dated 2 March 2020 and before the Court. It contained the following:
MENTAL STATE EXAMINATION
[…]
Despite her continuing avalanche of allegations against [Mr Silver], it appears that [Ms Pilot] has on occasion continued to seek him out a relationship with nonetheless. Her account of [Mr Silver] was unrelentingly critical and it was readily evident that she holds him with considerable grievance and enmity being the most constant feature of her presentation throughout the interview. In addition she was inclined to minimise aspects of her earlier traumatic history, overall, her presentation as consistent with someone of considerable vulnerability with suggestions of a core unstable personality style, and enmeshed relationship with the children with what appear to be frequent discussions and direct questioning of them, using language which would not appears in keeping with their development and young age.
OPINION
[…]
3. Beyond [Ms Pilot’s] initially pleasant, clam and settled appearance and presentation, her narrative was unrelentingly critical of [Mr Silver] in regard to his relationship with her and the children. She raises a series of damning allegations against him, similar to [Ms K] and [Ms G]. If those allegations are found to have a significant basis in fact then it would not be appropriate for [Mr Silver’s] contact with the children to continue. On the other hand, it has been noted however that the allegations raised by [Ms Pilot] have not been substantiated and there have been concerns expressed by a number of health professionals in regard to her presentation.
4. Similarly I was left with significant reservations as to [Ms Pilot’s] account and whilst she may well be reacting to the severe abuse which she alleges directed towards her by [Mr Silver], in the alternative her account was accompanied by a distinct sense of malice directed towards him. Escalating and increasing allegations in my experience made by one party against the mother in the absence of evidence point to disturbance of the party making the allegations in regard to their personality functioning and/or mental health. Such behaviours also call into question that parent’s ability to support the children’s relationship with the other parent.
Dr F’s diagnosis for the mother was:
·Adjustment Disorder with Anxious Mood; and
·Borderline Personality Traits.
At the commencement of the first final hearing on 3 August 2020, which did not proceed, Counsel for the mother informed the Court that the mother would permit the father to spend unsupervised time with the children and that she would remain living in close proximity to the father. The father refers to some relevant extracts from my reasons for decision of 3 August 2020 published in case neutral citation [2020] FamCA 691 in referring to the mother’s change of position. I stated:
4. In the mother’s material and up until this morning, the mother has sought to restrict the children’s time with the father based on her experience of the father as a perpetrator of family violence. Her allegations against the father extend beyond severe family violence and verbal abuse, coercive and controlling behaviour, to include:
(a)[sexual assault] of her;
(b)smothering her with a pillow to her face;
(c)smothering her by sitting on her face when she was asleep;
(d)getting someone else to [sexually assault] her (which she posits might have led to the conception of [Y] and [X]);
(e)drugging the children or one of them;
(f)sexual abuse of the children or one of them;
(g)bruising the children;
(h)raising his fist to the children;
(i)killing pets of intimate partners;
(j)torturing pets of intimate partners;
(k)killing animals;
(l)treating the children like pets;
(m) threatening to shoot the mother.
5. The mother’s new position was made known to me only this morning but her case outline which contains it as annexure A of “orders sought by the respondent mother” was attempted to be filed on Friday. It was apparently quarantined by the Court’s IT network and was only received by Chambers this morning. Mr Kiernan, counsel for the mother, conceded that his understanding is that his client’s new position was only adopted as of last week when the outline was filed. Therefore, it is not a situation where the mother has held this new position some time ago and merely not communicated it to any other party.
A further section 62G(2) report was ordered, essentially to assess whether the mother would actually be able to support the children having a meaningful relationship with the father. The second Family Report is dated 29 September 2020. In the second Family Report Ms B evaluated:-
60. This is an updated family report regarding the parenting arrangements for 3 year old […] twins, [Y] and [X]. The parents are in dispute regarding primary care of the twins and parental responsibility. The twins live primarily with their mother and currently spend from Friday to Sunday with their father each weekend.
61. This updated report was completed shortly after the family report dated 6/05/09. Therefore the issues remain for the most part, unchanged. The most significant issue of concern from the writer’s perspective was the parent’s capacity to co‑parent going forward and whether [Ms Pilot] could ever fully support the children having a relationship with their father.
62.[Ms Pilot’s] behaviour of changing her position immediately prior to trial and suddenly agreeing for [Y] and [X] to spend unsupervised time with their father was troubling. This was mostly due to the seriousness of her allegations of family violence in her relationship with [Mr Silver], coupled with the allegations of two of [Mr Silver’s] ex-partners that she had obtained in supporting affidavits for these proceedings. Notwithstanding her allegations of harm to [Y] and [X] in [Mr Silver’s] care. [Ms Pilot] appeared to have gone to significant effort to procure this evidence to support her position and it seemed highly unlikely that she would change her position in the face of such concerning allegations towards the end of the matter.
63. [Ms Pilot's] explanation for this is that it took her time to accept that [Y] and [X] will have a relationship with their father and therefore, she is attempting to come to terms with this herself, despite her experiences of him. However, it is unusual that a parent who has been so concerned with the children’s safety could come to this decision without a testing of the evidence. Despite [Ms Pilot’s] view that she is working towards accepting [Y] and [X’s] relationship with their father, there are still concerns that her intentions are insincere and that she may attempt to restrict and control the children’s relationship with their father in the future once litigation has been finalised.
64. Whilst it is unlikely that this co-parenting dynamic will ever be ideal, fortunately, [Ms Pilot] appears to have made some positive changes in the short time between the initial family report and this update. As was discussed in the previous report, it is still felt that a significant issue in this matter is [Ms Pilot] background of trauma. It his highly possible that [Ms Pilot] has experienced and may continue to experience post-traumatic stress as a result of [the children’s health issues after birth]. This experience of living daily being concerned about life and death appears to have contributed in a significant way to her hypervigilance of the twins in terms of their relationship with [Mr Silver].
65.[Ms Pilot] has engaged in personal therapy which both she and her therapist reported to be progressing well. She discussed themes of working to understand her triggers and to understand normal behaviours of children from separated families in order for her to not overreact when she observes behavioural changes when the children have been at their fathers. She stated that she values the children’s relationship with [Mr Silver] and that she can see that they love him. [Ms Pilot] was also able to acknowledge the loss for [Y] and [X] if their relationship ceased with their father now or in the future.
[…]
69. Given the seriousness of the allegations raised in relation to [Mr Silver] by [Ms Pilot], it is anticipated that sending [Y] and [X] to spend time with their father could cause some level of emotional dysregulation for [Ms Pilot]. Whilst she articulated that she is attempting to support the relationship between [Mr Silver] and the children, she continues to stand by her allegations in relation to the family violence she experienced during their relationship. Therefore, learning to manage her own emotional response to [Y] and [X] spending time with [Mr Silver] will likely be an ongoing issue for [Ms Pilot] that she will require support to manage.
Notably, the evidence of Ms G and Ms K was referred to by Ms B.
On 19 October 2020, I made the final parenting orders by consent. The Final Order included that the parents have equal shared parental responsibility, that the children live with the mother, and the children spend time with the father every second weekend and alternating Thursday evenings, half of holidays, and on a week-about basis during summer holidays.
By May 2022, the children were spending 5 out of each 14 nights in the care of the father as provided in the final order made 19 October 2020. The parents were residing approximately 15 minutes’ drive from each other’s residence. The last period of the children spending time with the father concluded on 6 May 2022 and, thereafter, the mother unilaterally ceased all time.
This second round of proceedings were instituted by the father on 30 May 2022. I made Interim Orders on 8 June 2022 which provided that the children reside with the father for 5 nights a week and with the mother for two nights a week at the maternal grandparent’s residence.
On 8 June 2022, I ordered a section 69ZW report, which was released on 14 July 2022 and outlines the following reports made to the Department (now known as the Department of Families, Fairness and Housing ):
• [Early] 2022: Report raised concerns [X] and [Y] have disclose sexual abuse perpetrated by [Mr Silver], [Ms Pilot’s] belief that [Mr Silver] has the potential to kill the children, [Mr Silver’s] alleged threats to harm [Ms Pilot] and children and, the children returning from contact with [Mr Silver] with bruising and marks.
• [Early] 2022: Report raised concerns that [X] and [Y] are being exposed to sexual and physical abuse perpetrated by [Mr Silver].
• [Early] 2022: Report raised concerns that [Mr Silver] is hitting [X] and [Y], and [Y’s] inappropriate sexualised behaviour.
• [Mid] 2022: Report raised concerns that [Mr Silver] is hurting [X] and [Y], twisting their arm, and [Y’s] sexualised behaviour.
• [Mid] 2022: Report raised concerns that [Mr Silver] squeezed [X’s] neck, [X] and [Y] being hit by [Mr Silver], [Mr Silver] told [X] to punch [Ms Pilot] in the face, [Ms Pilot] is in fear for her life and thinks [Mr Silver] will kill her.
Under the heading ‘Protective Assessment’ the following comments were made:
Family Violence:
Child Protection has found no evidence of family violence perpetrated by [Mr Silver] towards [Ms Pilot] over the course of this intervention.
Bruising/injuries to [Y] and [X]:
Child Protection have found no evidence of injuries or bruising to the children over the course of this intervention outside of those which appear to be age and stage appropriate.
Sexual abuse:
Child Protection have found no evidence that [X] and [Y] have been sexually abused by [Mr Silver].
Conclusion:
There is ongoing parental conflict between [Mr Silver] and [Ms Pilot] which is likely to be having a negative impact on [X] and [Y’s] emotional and psychological safety and wellbeing. It is likely that this will result in significant emotional and psychological harm if it is to continue.
[X] and [Y] continue to be exposed to regular medical and therapeutic interventions while they are in the care of [Ms Pilot]. If these are unnecessary interventions, they are likely to adversely impact on [X] and [Y’s] emotional and psychological health and development.
No evidence has been found to support [Ms Pilot’s] allegations pertaining to family violence perpetrated by [Mr Silver] towards [Ms Pilot], or sexual or physical abuse perpetrated by [Mr Silver] towards [Y] and [X]. It has been assessed that there is insufficient evidence to indicate [Y] and [X] are at risk of significant sexual, physical, emotional or psychological harm in the care of their father [Mr Silver].
After a defended hearing on 22 July 2022, Interim Orders were made by Justice Carter which provided that the children live with the father and spend time and communicate with the mother on a supervised basis for not less than two hours per fortnight. This mother’s supervised time was due to commence in September 2022 but did not commence until 3 December 2022.
The mother filed a Notice of Appeal against Justice Carter’s decision. The appeal was heard on and judgment was delivered by the Full Court, comprising Austin J, McGuire J & Campton J, on 21 November 2022. The mother’s appeal was dismissed.
On 10 August 2022, I set the matter down for final hearing to commence on 15 May 2022. In relation to evidence, I ordered a timetable for affidavits and proofs of evidence. Significantly, I included a Notation “that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief”. This is consistent with rule 8.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. There was liberty to have the matter mentioned in relation to the trial. Case outlines were required by 9 May 2023. None sought to have the matter mentioned.
The father filed his affidavit evidence within time. The mother filed her affidavit evidence two weeks late. Due to a Registry error, the Family Report which I ordered be prepared was published within the time parameters of my Order but was not sent to the parties for another five weeks.
The mother’s affidavit runs to 363 pages, including 354 paragraphs and 298 pages of annexures. Counsel for the mother confirmed that the mother’s affidavit is three earlier affidavits relied upon by the mother in interim proceedings which have been stuck together without apparent effort to bring it into current tense. Ms G’s affidavit is annexure “[MP39]” and is 7 pages long. Ms K’s first affidavit attaches 18 closely typed pages in stream of conscious style and is annexure “[MP40]”. There is a second affidavit of Ms K which is 30 pages in length including annexures and is marked annexure “[MP41]”.
DISCUSSION
As I understand the cases of the father and the Independent Children’s Lawyer, it is contended that, because the mother chose not to rely on evidence of the father’s two previous domestic partners in earlier parenting proceedings, and indeed consented to orders which were wholly inconsistent with that evidence being correct, she should not be permitted to rely on the evidence now.
In Fowler & Northwood [2022] FedCFamC1A 173 Austin J, sitting as the Full Court, considered the admissibility of evidence adduced in an earlier concluded proceeding. In June 2020, orders were made, by consent by a Judge of the Federal Circuit Court of Australia (as the Court was then known) for, inter alia, equal shared parental responsibility for the children, that the children live with the mother, and spend substantial time with the father. Fresh proceedings were commenced by the mother a year later, in June 2021, seeking the father have only supervised time with the children. The father opposed the mother’s application but also sought a revision of the final orders. A Family Report was prepared and published, strongly supporting the mother’s case. The mother brought an application for interim orders consistent with the Family Report and was successful. The father appealed and contended, amongst other things, that it was not open for the primary Judge to go behind the existing orders made in June 2020, since the parties’ assent to those orders (providing for the children to spend substantial amounts of unsupervised time with him) reflected their mutual admission that the orders were made in the children’s best interests, thereby subsuming all antecedent complaints of parental misconduct or incapacity. In the appeal the father’s Counsel submitted:
43.The error of principle extends to an apparent failure to consider the significance of allegations predating the making of the final orders and indeed predating the making of the interim orders and the consequence of the curial process which arguably subsumes or deals with the competing allegations including the mother’s allegations of abuse, mental health and other allegations against the father.
Austin J stated:
[40]This argument is also misconceived because it assumes the “issue” of the children’s best interests was definitively resolved up to the point at which the orders were last made with the parties’ consent in June 2020, or alternatively when the Senior Judicial Registrar varied those orders in September 2021. However, no “issue” was immutably resolved. The principle of “issue estoppel” does not apply to parenting proceedings conducted under Pt VII of the Act (Reid v Lynch (2010) FLC 93-448 at 85,102–85,104; Schorel & Schorel (1990) FLC 92-144). The statutory imperative of children’s best interests always being the paramount consideration is not overridden by principles of estoppel.
[41]Given the mother consented to the orders made in June 2020, the primary judge was certainly entitled to evaluate any evidence adduced by her about the father’s alleged misconduct or parental incompetence prior to her assent to the orders with a healthy degree of scepticism, because she willingly overlooked such concerns when she agreed to the orders allowing the children to spend substantial time with the father. But that is a quite different proposition from her Honour being obliged to disregard such evidence, as the father explicitly submitted.
[42]As already mentioned, the Act obliged the primary judge to heed any tangible risk of harm (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG), despite the evidence being contentious, and there was undoubtedly evidence of risk before the Court.
[43]As it was, the mother only adduced evidence of the father’s conduct after the orders were made in June 2020, evoking her concern about the children’s welfare in his care and explaining why she wanted the orders varied. The father disputed her evidence, but that did not render it inherently unreliable. It was only the single expert report which covered allegations of the father’s historical conduct at times before the orders made in June 2020. The single expert’s opinion evidence only became available in February 2022, after the varied interim orders were made in September 2021. Such evidence piqued the primary judge’s concern – untested as it was – and was the subject of Ground 3, which contends in part for an error of principle by the primary judge’s “approach to the application of the Single Expert Report”.
[44]The father expressly contended the primary judge had to disregard the single export report because it was either “inadmissible or had no weight”, which submission is rejected. The single expert report was admissible because it was relevant and no objection was taken to it. The report was admitted into evidence (Exhibit A). Moreover, there was no principled or logical basis to contend the report must have nil weight, as distinct from the primary judge having to be cautious about the probative weight attributed to the report when it was yet to be tested
Application of the ‘tendency rule’ in family law proceedings
There were previous Orders dated 11 August 2022 in these proceedings to the effect that parties were not entitled to rely on affidavit material relied upon for previous hearings as evidence in chief. The material the mother sought to adduce by way of her notice to adduce tendency evidence included affidavits of Ms G and Ms K which were contained in MP39, MP40 and MP41 of the mother’s trial affidavit in these proceedings. The first of these affidavits was filed for proceedings in June 2020 before the last set of final orders were made. MP40 and MP41 are also dated prior to June 2020. Both deponents have been subpoenaed by the mother to give evidence in the final hearing of this matter.
By way of her Notice to Admit tendency evidence served on the father on 4 May 2023, the mother indicated her intention to introduce MP39, MP40 and MP41 of the mother’s trial affidavit dated 25 April 2023 by way of the tendency rule in s97 of the Evidence Act 1995 (Cth). She seeks to adduce the evidence as relevant evidence pertaining to the father’s character, reputation or conduct, namely the father’s alleged propensity to commit family violence and torture and kill animals. I understand that the intention of such an application would be to use this evidence to positively prove some other fact in issue in these proceedings.
Part 3.6 of the Evidence Act regulates, in part, the admissibility and use of tendency evidence. The “tendency rule”, which applies to both civil and criminal proceedings, is relevantly defined in this way:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless--
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
I also asked Counsel to specify which paragraphs of the affidavits they wished this Court to take into account as ‘tendency evidence’. The following paragraphs were mentioned:
(1)MP39: Paragraphs [5], [6], [7], [9], [11], [13], [17], [18], [19] and [22].
(2)MP40: First full paragraph and the final paragraph; the whole of pages 5-16.
(3)MP41: Paragraphs [7], [8], [11], [13], [14], [16], [17], [21], [22], [26], [28] and [36].
In 2006, the Family Law Act 1975 (Cth) was amended to include Division 12A which gives effect to the less adversarial trial principles and significantly widens evidence which is admissible in proceedings by dispensing with the operation of specified provisions of evidence law. One such provision introduced by way of these amendments was s69ZT. In short, s69ZT provides inter alia that Pt 3.6 of the Evidence Act does not apply to child-related proceedings. The effect of s69ZT(1) is that the Court may “…give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).”
In Isles & Nelissen [2022] FedCFamC1A 97, the Full Court of the Federal Circuit and Family Court of Australia comprised of Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ discussed at paragraphs [88]-[91]:
[88]In parenting proceedings conducted under Pt VII of the Act, ordinarily, large tranches of the Evidence Act do not apply (s 69ZT(1)). In such circumstances, all evidence is admissible, provided it is relevant and has some probative value.
[89]But a court exercising jurisdiction under Pt VII of the Act always has the option of ordering that one or more of the excluded provisions of the Evidence Act should apply if certain conditions are met (s 69ZT(3)). The court may do so pursuant to an application made by a party or of its own volition (s 69ZP).
[90]In exercising the power under s 69ZT(3) of the Act, the court is permitted to apply one, some, or all of the excluded parts of the Evidence Act to one, some, or all of the issues in the proceedings (Maluka & Maluka (2011) FLC 93-464 at [121]–[123]).
[91]It would be quite uncommon to make an order in such broad terms that all excluded parts of the Evidence Act apply to all issues in the proceedings. More commonly, a court would apply the provisions of Pts 3.2 to 3.8 of the Evidence Act, which deal with the admissibility of evidence, to one specific factual controversy which is likely to be pivotal – such as an allegation of child sexual abuse. The Full Court has pronounced that s 69ZT(3) will likely be invoked when one party seeks a positive finding of criminal conduct (Amador v Amador (2010) 43 Fam LR 268 at [93])…
While subsection (3) of s69ZT of the Family Law Act provides that the Court may decide to apply a rule of evidence excluded by subsection (1) of the same section, no application was made by a party or submissions made to encourage the Court to do so of its own volition.
While not required, I note I have made no previous Order under s 69ZT(3) of the Act that the tendency rule was to apply to these proceedings. As the evidence is admissible by way of other means discussed below, I decline to make such an order now.
Whether the evidence can be admitted at all
The parties had from August 2022 to 30 March 2023 (for the father) and 13 April 2023 (for the mother) to file and serve any amended application or response and all affidavit material or proofs of evidence in support of their case. The mother filed her affidavit material almost two weeks out of time. The material the mother seeks to rely on was not filed in accordance with my Orders. It was done as annexures to other material. The affidavits are not mentioned in the mother’s Outline of Case.
Rule 8.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that “an affidavit filed with an application may be relied on in evidence only for the purpose of the application for which it was filed.” The affidavits constituting MP39, MP40 and MP41 were filed in previous proceedings concluded on 19 October 2020 and otherwise pre-date the initiating application for the proceedings on foot. The Court may dispense with this rule (Rule 1.31) but did not do so prior to this event.
I clearly have power to dispense with the operation of Rule 8.14. In the event that the evidence may be admitted under a provision of the Act, this Court has the ability to dispense with this rule to allow the affidavits to be relied upon in these proceedings.
Section 55 of the Evidence Act 1995 (Cth) provides that evidence is relevant where if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The evidence is submitted in support of the mother’s contention that the father is a perpetrator of family violence. As I understand it, the mother contends that the evidence is relevant to establish that the father has acted to witnesses, Ms G and Ms K, in a way which is similar to the father’s alleged mistreatment of the mother and to an extent that the court can accept that the father has a tendency to act in that particular way and did act in that way in this case. Separately from evidence of a tendency to commit past acts of family violence, the mother relies on the evidence to prove that prospectively the father represents an unacceptable risk of harm to the children.
Section 135 of the Act is not excluded by section 69ZT of the Family Law Act1975.[1] Section 135 of the Act states:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
[1] England & Harrison [2020] FamCA 1083 [11] (Altobelli J).
Counsel for the father argued that the probative value of MP39, MP40 and MP41 is outweighed by the undue waste of time that admission of that evidence would cause. In any event, Counsel argued the probative value of an ex-partner is minimal, particularly in circumstances of the previous Final Order made by consent. If the matter is not adjourned, there would be no reasonable prospect for the father to call rebuttal evidence. Counsel also foreshadowed a need to call the father’s ex-partner to give evidence, resulting in further delay, and noted the position of his client in not having had an opportunity to respond to the allegations contained in MP39, MP40 and MP41. Counsel pointed to Rule 8.18 and the ability of this Court to strike out material from an affidavit at any stage material which is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative.
The parties addressed me on whether the evidence should be refused under s135 of the Evidence Act or admitted by way of this Court’s overriding power in s69ZX to give directions or make orders as to evidence in giving effect to the principles in section 69ZN of the Family Law Act. Section 69ZX is not a legislative provision about the relevance of evidence, it governs the Court’s power to make directions as to how relevant evidence may be adduced.
Dr Alexander, of Counsel, for the Independent Children’s Lawyer echoed the comments of the father’s Counsel. Counsel pointed to irregular filing of the mother’s documents and the fact that the father’s former domestic partners are not mentioned in the mother’s Outline of Case. Counsel submitted that there is very little relevance of the material to the short term and long‑term best interests of the children. She submitted that if the mother wanted to rely on their evidence, she should have done it in normal way.
I do not accept the submissions of the father and Independent Children’s Lawyer, that the probative value of the proposed evidence is outweighed by an undue waste of time. The existence of family violence and related risk to the children is a significant issue in this matter.
It came to light that the subpoenas issued to the father’s former domestic partners, Ms K and Ms G which were unusual in that they were issued despite the deponents not being on affidavit in these proceedings, were not served upon the father and Independent Children’s Lawyer. Three further subpoenas were issued to other persons not on affidavit and not listed in the mother’s Outline of Case. Dr Alexander stated on behalf of the Independent Children’s Lawyer, she did not know about the subpoenas until the day before this hearing. Counsel for the mother explained that a letter was sent to Registry explaining the subpoenas but that the other parties were not copied in. Failure to serve a copy of a subpoena on interested parties is in breach of Rule 6.30(3) of the Federal Circuit and Family Court of Australia Rules 2021.
Counsel for the mother submitted that the affidavits were of sufficient weight to be admissible, and that procedural orders are not as important as the substance of the matter.
The affidavits of the father’s former domestic partners were also not shown to the Family Report writer, who has had the benefit of no material in this matter dated prior to 2022.
The evidence of the father’s two former domestic partners is relevant to the matters in issue in these proceedings, being the existence of family or domestic violence.
Having found the evidence of the father’s former domestic partners to be relevant, it is necessary to accord the father and the Independent Children’s Lawyer procedural fairness and the ability to adjust their respective cases to respond to that evidence. As indicated, the interesting issue will be how much weight can be attached to the evidence of the father’s two former domestic partners. It is unlikely to be dispositive, then again, it is also unlikely to be ignored. This will await the final hearing.
The matter will be adjourned to the next available date, most unfortunately there will be a significant delay. That delay was occasioned by the manner in which the mother’s case was run, however, for the avoidance of doubt, the adjourned date represents the first possible date for hearing that I can accommodate and the delay is not imposed as any punitive measure. Notably, the matter has now expanded to a 10-to-12-day case.
Consequently, in the interests of procedural fairness, subject to compliance with the Rules of Court, all parties may now rely on evidence relied upon by him/her in the proceedings concluded on 19 October 2020.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 29 January 2024
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