Simon and Peters and Ors

[2013] FamCA 397

FAMILY COURT OF AUSTRALIA

SIMON & PETERS AND ORS [2013] FamCA 397

FAMILY LAW – PRACTICE AND PROCEDURE – Section 69ZT application of the rules of evidence.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr P Simon

RESPONDENT: Ms Peters

2^ND RESPONDENT: Mr Peters

3^rd RESPONDENT: Ms West

4^th RESPONDENT: Mr R Simon

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9755 of 2012

DATE DELIVERED: 26 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 26 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Arnold

SOLICITOR FOR THE APPLICANT: Samantha Ward Pty

COUNSEL FOR THE 1^ST AND 2^ND

RESPONDENTS:

Mr Leong

SOLICITOR FOR THE 1^ST AND 2^ND

RESPONDENTS:

Forte Family Lawyers

COUNSEL FOR THE 3^RD
RESPONDENT: Ms Theoharopoulou

SOLICITOR FOR THE 
3^RD RESPONDENT: Comito & Associates

THE 4^TH RESPONDENT: No Appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr W Smith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Agricola Wunderlich & Associates

Orders

1. That all applications for final orders be adjourned for hearing before Justice Cronin as the seventh case in the list commencing on 23 July 2013 but not before 24 July 2013 at 10 am as a five day matter and that the evidence in chief of all witnesses be given by affidavit.

2. That by 4 pm on 3 May 2013 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought; and

   (b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

3. That the applicant pay all setting down and trial fees by 4 pm on 3 May 2013.

4. That by 4 pm on 10 May 2013 the 1^st and 2^nd respondents file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

5. That by 4 pm on 17 May 2013 the 3^rd respondent file and serve upon all other parties:

   (a)an amended response setting out with precision what orders are being sought; and

   (b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief).

6. That by 4 pm on 24 May 2013 the applicant file and serve any affidavit in reply to that of the affidavits of the respondent.

7. That by 4 pm on 12 July 2013 the Independent Children’s Lawyer file and serve upon all other parties, any affidavit material relied upon.

8. That no party file any further material other than as provided by these orders without leave of the Court.

9. That prior to commencement of the trial, the parties determine whether there are to be any rulings required arising out of objections to evidence and such objections be referred to in the parties’ outlines of case.

10. That the extant order for the preparation of a family report is discharged and that pursuant to s 62G (2) of the Act, the parties and the children attend upon and at the direction of a family consultant nominated and appointed by the Director of Child Dispute Services of the Melbourne Registry for the purposes of the preparation of a family report not to be commenced until after 31 May 2013 but to be completed and released by 21 June 2013 and IT IS REQUESTED that the family consultant address the issue of the child’s behaviour as alleged by the 1^st and 2^nd respondents which has given rise to the complaint by them to the Department of Human Services.

11. That the Family Consultant be at liberty to inspect the court file and all documents produced under any subpoena to which objection to release has not been taken noting that the rules of evidence are to be applied to all affidavits filed by the parties.

12. That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file and the respective practitioners will show to the Registrar the relevance of the requested subpoenae.

13. That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to ensure readiness for trial.

14. Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar,

    (a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and

    (b)the party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.

15. That the practitioners for the parties file and serve electronically to … by 4 pm on 19 July 2013 the following:

    (a)a concise set of orders to be sought if different from those already filed;

    (b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

    (c)a list of objections to evidence upon which rulings are required; and

    (d)a bullet-point summary of argument in relation to the issues in dispute.

16. That the hearing on 8 May 2013 is vacated.

17. That the Department of Human Services be advised by the Independent Children’s Lawyer that notwithstanding previous advice to the Court that they do not intend to intervene, the Department is now on notice that both the mother Ms West and the paternal grandfather Mr P Simon are seeking orders that the child M born … March 2009 live with them.

18. Pursuant to s 69ZT(3) of the Act, the circumstances being exceptional, the provisions of the Evidence Act 1995 (Cth) apply in these proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9755  of 2012

Mr P Simon

Applicant

And

Ms Peters

Respondent

And

Mr Peters
2^nd Respondent

And

Ms West
3^rd Respondent

And

Mr R Simon

4^th Respondent

REASONS FOR JUDGMENT

1. On 26 March 2013 I set down a final parenting hearing between a number of parties concerning a four year old child who has already seen and been involved in significant litigation. 

2. I raised s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) and whether its application should be applied.

3. The parties are the child’s paternal grandfather, the child’s biological mother and two people who have no blood relationship to that child but have cared for her virtually since birth.  As the matter came on for hearing, I was handed a faxed letter from the child’s father who is currently in prison serving a four year sentence for a serious assault on the child.  He pleaded guilty to offences in the County Court of Victoria. Despite the family law proceedings having been on foot for months and a number of hearings having been conducted, the father has now said he wants to participate and have a say in his daughter’s life.  To date, he has filed nothing.

4. The mother apparently has a history of drug use.  She asserts she is now “clean”.  She acknowledged having a mental illness.  She has also had significant involvement in her life from the Department of Human Services.

5. The paternal grandfather has had accusations of sexual impropriety made against him by the carers of the child and he strongly refutes those allegations.  They apparently arise as a result of the child’s behaviour and her statement as to where the behaviour concept came from.  The paternal grandfather alleges the complaints against him are malicious.  They need to be tested. 

6. I understand from the material that the paternal grandfather is separated from his wife under the one roof.  I am told that the wife will be a witness for him but what role she would fulfil in the future, bearing in mind her separation, is unclear. 

7. The carers have the child because of the intervention of the Department of Human Services.  There have been Children’s Court proceedings.  Their link to the child is not entirely distant or irrelevant.  The male of the two carers is the father of the child’s half sibling.  Thus the siblings live together and one issue will be the problem of splitting those two children who have been together virtually all of their lives.

8. Another issue is that the paternal grandfather is of Aboriginal descent and thus, cultural rights of the child become relevant as well. 

9. The Independent Children’s Lawyer has formed the view already that the primary residence should be with the carers but his focus will be on whether the grandfather’s contact should be curtailed.  The Independent Children’s Lawyer does not support the mother’s position and certainly not that of the father.

10. The mother’s position about contact by the father (if she was solely responsible for the child’s care) was that she would organise supervised contact.  I have concerns about how that would happen and what safeguards could be put in place having regard to her own health and the criminal history of the father which is not limited to the offences that I have just mentioned.

11. The Department of Human Services was invited to intervene early in the litigation but said that they had no protective concerns because the child was in the possession of the carers.  I am not at all clear whether the Department understood that the paternal grandparent as well as the mother, are now seriously pursuing a residence order.  Thus, the evidence of the Department may become relevant.

12. In a parenting case, to apply the evidentiary rules as set out in the Evidence Act 1995 (Cth), the Court must be satisfied that the circumstances are exceptional.

13. Section 69ZT requires a number of matters to be taken into account which include the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence and the powers of the Court to adjourn the hearing, make another order or give a direction in relation to the evidence.

14. Major issues in this case will be family violence and issues of risk to the child relating to a number of parties.  There are accusations all of which are hotly denied.  Each of those allegations is very serious and has an impact on the appropriateness of a parent or carer as well as the potential risk for the physical and psychological safety of the child.

15. If findings were made that the events occurred as described by one or more of the parties, the presumption of equal shared parental responsibility most likely would be rebutted.  That may mean that the pathway of determination could be different from that anticipated by all of the parties.

16. The seriousness of the proposals of the parties and the nature of the proposed evidence to be tested and relied upon is a good indication that this is not the sort of usual case heard in this Court.  In my view, quite the contrary, it is exceptional.

17. Section 69ZT also contemplates the Court examining the probative value of the evidence. There is sometimes a fine line between what is relevant and what is not and hence what is admissible. In a serious case such as this, the allegations may not be corroborated and in that situation, the rules of evidence provide a framework so that there is less doubt about what should be admitted and what should not. Applying the rules of evidence, also assists the Court in testing the evidence having regard to the specific provisions of s 140(2) of the Evidence Act.

18. Section 69ZT also permits the Court to give directions in respect of evidence so that to the extent that this ruling might be seen as restrictive, there is always the capacity of a party to apply to admit further evidence if it can be shown to be relevant.

19. For those reasons and because of the consensus of the parties, in accordance with s 69ZT(3) of the Act, the provisions of the Evidence Act 1995 shall apply.

I certify that the preceding Nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 March 2013.

Associate: 

Date:  22 April 2013