Smoothe and Enmore (No 4)

[2014] FamCA 1195

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE (NO 4) [2014] FamCA 1195

FAMILY LAW – PROCEDURAL – where the mother makes an oral application for the provisions of the Evidence Act 1995 (Cth) to apply in parenting proceedings – application dismissed.

Evidence Act1995 (Cth) ss 69ZN, 69ZT, 76, 79
Family Law Act 1975 (Cth)

APPLICANT: Mr Smoothe

RESPONDENT: Ms Enmore

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley

FILE NUMBER: BRC 4709 of 2012

DATE DELIVERED: 26 November 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele of Counsel

SOLICITOR FOR THE APPLICANT: Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT: Ms Merkin of Counsel

SOLICITOR FOR THE RESPONDENT: Crana Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Frizelle of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. The mother’s oral application pursuant to s 69ZT(3) for the provisions of the Evidence Act 1995 (Cth) to apply in this case, is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smoothe & Enmore (No. 4) 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 BRISBANE

FILE NUMBER: BRC 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

REASONS FOR JUDGMENT

1. For immediate decision at this stage of this trial, which is now the morning of day two of the trial, without the trial actually getting underway, is an application brought on the afternoon of the first day, after I had given decision in the application to adjourn the trial, pursuant to s 69ZT(3) of Division 12A of the Family Law Act 1975 (Cth) for the Court to decide to apply all of the provisions of the Evidence Act1995 (Cth) that are otherwise said not to apply if one looks at s 69ZT(1) of the Family Law Act; more specifically, in subparagraphs (a), (b), and (c) of s 69ZT(1). There are a number of divisions and parts of the Evidence Act that are listed after an express provision that says these provisions do not apply to child related proceedings. 

2. There is absolutely no dispute in this case that these are wholly child-related proceedings; the conduct of which falls to be guided by the provisions of Division 12A in accordance with principles for the conduct of such proceedings that are set out in s 69ZN. In s 69ZT(1), subparagraph (a) excludes Divisions 3, 4, 5 of Part 2.1 of the Evidence Act other than sections 26, 30, 36, and 41, and subparagraph (b) excludes Parts 2.2 and 2.3, and (c) excludes Parts 3.2 and 3.8.  They particularly deal with hearsay, and, most importantly and relevantly to this immediate application, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. 

3. The apparent purpose for including such an exclusionary provision in Division 12A in relation to parenting proceedings, as pointed out by counsel for the mother, who makes the application through reference back to a speech in parliament by the Honourable Senator Santoro, who, I expect, must have been a Minister or a spokesman for a Minister speaking to the 2005 Family Law Act amendment legislation in the Senate – was for parenting proceedings or child-related proceedings to be far less adversarial than they were prior to the introduction of Division 12A, and to be able to be conducted by the court in a less adversarial, more informal way directed principally at benefiting the wellbeing of the children who are the subject of those proceedings; principally by attempting to reduce the amount of conflict and adversarial proceedings that the parents were being exposed to.

4. Nevertheless, parliament deigned it appropriate to include s 69ZT(3) in the Act, which gives the court a discretion, notwithstanding the exclusionary provision of subsection (1) of that section, to actually decide to apply one or more of the provisions of a division or part mentioned in subsection (1) to an issue in the proceedings if a number of matters are satisfied.  They are, namely, that if the court is satisfied that the circumstances are exceptional, and if the court has taken into account, in addition to any other matters the court thinks relevant, thus making it a very broad test for consideration, the following things:  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, if any, to adjourn the hearing to make any other order or to give a direction in relation to the evidence. 

5. Now, in this particular case, the court is being asked to ultimately make parenting orders in respect of a five-year old girl.  The court is to be guided by the best interests of the child being the paramount consideration.  The central task of the court is not to make findings or otherwise as to child sexual abuse, although that is one of the issues centrally in dispute as between the parties in this case.  There are, as I understand the evidence that I have read, also some allegations made by the mother that the father perpetrated family violence against her, her daughter of a previous relationship, and the child who is the subject of these proceedings. 

6. Counsel for the mother applies for the discretion conferred upon the court under s 69ZT(3) to be applied in such a way that all of the excluded provisions of the Evidence Act actually be applied in respect of, as I understood it yesterday, she was particularly referring to the family violence or domestic violence issues and the child sexual abuse issues, but I did not really discern that she was asking for it only to be applied in respect of those issues and nothing else.  I understood that she was asking for these provisions to be applied right across the board in this particular case. 

7. Her submission on behalf of her client in support of the application is that serious allegations of child sexual abuse should be considered by the court to amount to circumstances that are exceptional, and in which the strict statutory rules of evidence should be applied.  In support of that submission, she referred to, again, extraneous material like the speeches in parliament and the explanatory memorandum, etcetera, to say that was what the court would discern was parliament’s intention.  She also took me to a number of cases in her submissions, a number of decisions of first instance, decisions of judges of both this Court and the Federal Circuit Court, but also some appeal decisions. 

8. Ultimately though, I do not understand her to have taken me to any decision of the Full Court or the High Court binding upon me that tells me that I must consider that a case such as this is an exceptional one, and therefore, that I must apply s 69ZT(3), it being a matter, as I have already identified, for the discretionary determination of a judge in each individual case.  As I have indicated in argument from bench to bar this morning, having read those submissions and heard Ms Merkin’s argument, having read some of the cases that I was referred to, having read the extracts from the explanatory memorandum, the senator’s speech, references to submissions made by the Family Court, references to the Australian Law Reform Commission’s report, I certainly am, if I can use the expression, attracted to the view that the facts of this particular case, I say that particularly because I do not wish to be held to the view that all cases in which sexual abuse allegations are made meet the standard of being exceptional, but that the facts in this particular case probably could be described as bringing the case within the exceptional bounds required to be found before the discretion conferred upon the court by s 69ZT(3) are activated. 

9. That said, counsel for the father, and indeed, counsel for the Independent Children’s Lawyer both object to the application that is made.  As I understand the objections, they are threshold objections in that they oppose the court actually hearing the application at this particular point in time.  They principally do so because of, as I see it, a number of matters. I do not consider any of these factual matters to be in dispute: they were given no notice whatsoever by counsel for the mother, the legal representatives for the mother, that such an application was going to be made and thus both were taken completely by surprise when it was made yesterday afternoon, and effectively submit that they are, in the circumstances, denied proper opportunity to consider and prepare arguments in response. 

10. The circumstances surrounding that issue are indeed aggravated, in my own view, by the fact that I have pointed out already in my reasons on the rejection of the adjournment application yesterday, a number of facts.  I am reasonably satisfied that the application is one that counsel for the mother in this particular case has had intention of bringing for a long time now.  My reasonable satisfaction of that point was confirmed, effectively, by counsel for the mother this morning.  That must be seen in context of my having asked her instructing solicitor three weeks ago, on Tuesday, 4 November this year, at the compliance check, when I was assured that the matter was ready for trial, whether there would be any further applications brought in the case. 

11. I was assured by the solicitor for the mother that to the best of her knowledge and understanding there would be none.  Not only did I let the matter rest at that, but I referred to the fact that I had had Ms Merkin, counsel for the mother, before me in previous matters where a number of applications were made at the last moment before the trial;  thus I was concerned that there was a possibility, not to say that there is no right to bring such an application, but by the possibility that such applications might be forthcoming before the trial and was seeking assurance that no such applications were going to be forthcoming. 

12. As I say, such assurance was given to me by the solicitor for the mother at that time.  The solicitor for the father and the Independent Children’s Lawyer were both present at that compliance check, and thus went from the court with some degree of comfort that they faced no further applications, although, as I have already said, this is now the second such application prior to the start of the trial that they have faced.

13. So the lack of notice is, as I say, an aggravated circumstance if it can be best described as that, and quite relevant, a matter to which I have to give a fair degree of weight in my discretionary exercise. Particularly where the consequences of applying s 69ZT(3) in a way that overrules s 69ZT(1) are fairly significant in respect of the conduct of the trial and in respect of all of the evidence that might otherwise be excluded, and where evidence was prepared for and by the parties on the basis that s 69ZT(1) applied.

14. The second matter that I refer to is the further failure on the part of the legal representatives for the mother to observe and comply with a direction of the registrar that was put in place.  Trial preparation directions were made by the Magellan registrar, Registrar Brooks, on 30 April 2014 which included, under the heading “Objections to Evidence”, the following directions:

    17)Each party, by not less than 28 days prior to the commencement of the trial, file and serve a list of objections to evidence, if any.

    18)Each party against whom any objections are taken by not less than 14 days prior to the commencement of the trial file and serve a response to the objections.

    19)The parties, prior to trial, confer and, if possible, reach agreement as to any objections to evidence.

15. I am informed by counsel for the mother that in the event that I was to accede to her application and apply s 69ZT(3) such that the rules of evidence or the provisions of the Evidence Act came into effect, she would then immediately be relying upon some of those provisions, most particularly s 76 and s 79 of the Evidence Act relating to opinion evidence and the exclusion of opinion evidence and the exception to that exclusion that is given rise to by s 79 in respect of expert opinion evidence, to argue the inadmissibility of certain opinions made by Mr M in his report. Mr M is the consultant social worker who was engaged and retained by the Independent Children’s Lawyer to prepare two family reports in this matter over the last year or so. I observe though that there was no notice given to any of the other two parties, particularly the Independent Children’s Lawyer, that the opinion evidence of Mr M would be objected to in circumstances where s 69ZT(3) was used to reactivate the provisions of the Evidence Act.  I again give a great deal of weight to that matter in exercising my discretion to refuse, at this late stage, the application to apply s 69ZT(3).

16. The third matter is that, notwithstanding submissions made by counsel for the mother in respect of allegations or a position seemingly adopted by the father in this case that he believes that the mother must have somehow coached or influenced the child in making disclosures that she alleges the child made against him, my own view of the proper application of s 69ZT(3) at this point in time is that it is in the Act principally to provide greater fairness in circumstances where serious allegations of criminal conduct such as child sexual abuse and/or family violence made against a party can be heard and determined in a more structured evidentiary law framework such as that provided by the provisions of the Evidence Act. Accordingly, in the normal course, it would generally be sought to be activated by the alleged perpetrator of such serious offences. In this particular case, the father does not seek the benefit of the application of s 69ZT(3) and the re-activation of the provisions of the Evidence Act.

17. Finally, as I pointed out to counsel for the mother, my determination of this application at this point in time does not in any way derogate from her ability and capacity to cross-examine Mr M at length, if she wishes and considers it necessary, about matters pertaining to his experience, training, qualifications, expertise, any factual basis upon which he expresses opinions, what his opinions actually relate to, the connection between the facts and the expression of his opinions, the linking between those and his special training, his experience and his expertise, bearing in mind that Mr M’s evidence and opinion evidence is based on the fact that he has a social work background and his evidence is not directed simply at the question of determining some central issue of whether or not the child has been sexually abused by her father.

18. It also does not prevent Ms Merkin from making submissions at the end of the trial about the weight that the court can place upon any of the evidence of Mr M, either in his written report or his oral evidence that he will no doubt subsequently give.

19. For all of those reasons I dismiss the application pursuant to s 69ZT(3) for the provisions of the Evidence Act to apply in this particular case and will commence the trial conducting it in accordance with the balance of the provisions of Division 12A including s 69ZT(1).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 November 2014.

Associate: 

Date:  28 January 2015