Stein and Jacobova

[2016] FamCA 70

FAMILY COURT OF AUSTRALIA

STEIN & JACOBOVA [2016] FamCA 70

FAMILY LAW – PARENTING – procedural orders – s 69ZT(3) order made.

APPLICANT: Mr Stein

RESPONDENT: Ms Jacobova

FILE NUMBER: MLC 13605 of 2007

DATE DELIVERED: 2 February 2016

PLACE DELIVERED: Melbourne

PLACE HEARD:

JUDGMENT OF: Cronin J

HEARING DATE: 2 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Karnis

SOLICITOR FOR THE APPLICANT: Lennon Mazzeo

COUNSEL FOR THE RESPONDENT: Mr Mort

SOLICITOR FOR THE RESPONDENT: Lewenberg & Lewenberg

Orders

1. That pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth), all evidence between the parties shall be subject to the Evidence Act 1995 (Cth)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stein & Jacobova 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 13605 of 2007

Mr Stein

Applicant

And

Ms Jacobova

Respondent

REASONS FOR JUDGMENT

1. This application started today on the basis that the father sought orders relating to international travel for the parties’ daughter internationally.  As a result of discussion, it became apparent that there are problems with the application.  Common sense has prevailed and because there are substantive applications before the court, I decided that the court’s resources would be better used by giving the parties a final hearing in relation to what really is the problem between them. 

2. The dilemma is that as late as November 2015, the father has sought orders which would have a radical change to his child’s life.  If the current application of the father was to proceed at trial and was supported by the evidence then its consequence would be very significant for the child of the relationship. 

3. On the other side of the coin, the mother has an application before the court which on its face simply proposes a suspension of the father’s time but does not address the question of any future contact. 

4. If either or both of those applications was granted, one can obviously see a significant impact.  The parties have already had the benefit of a report from Ms B, who is a psychologist in private practice.  That report was prepared for the purposes of an interim hearing before the senior registrar. 

5. It is time to end this litigation, bearing in mind that the first litigation began on 2007.  For that reason, this case should be given priority over other cases that are in the list.  I propose to deal with it in April.

6. One of the problems that then flows is that the parties will need to quickly gather together all of the evidence upon which they intend to rely.  There is not much point in doing that until they actually work out what orders they want.  The affidavit material obviously must support the orders they seek. 

7. Section 69ZT of the Family Law Act provides that in parenting proceedings, certain rules of evidence do not apply. Whilst it might be said that that particular provision ameliorates some of the requirements in relation to evidence, it certainly has not removed sections 55 and 56 of the Evidence Act, which are focused upon relevance.

8. This is a case, however, because of the nature of the applications, as they currently stand, that I consider the impact to be so serious on the child if either of the parties’ applications was successful that it is most unusual. Section 69ZT provides that the court can apply one or more of the provisions of the Evidence Act if the circumstances are exceptional. The court is to take into account the importance of the evidence, the nature of the subject matter of the proceedings, the probative value of the evidence and the powers of the court to deal with the matter otherwise.

9. As I have already observed, this is a case where the consequences are really serious for this child, not to mention the parents. In those circumstances, the issue is exceptional. The provisions of section 69ZT(3) should apply; that is that the rules of evidence apply strictly in relation to all of the evidence that the parties want to rely upon.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 February 2016.

Associate: 

Date:  16 February 2016