STRONG & WELCH

Case [2014] FCCA 1376

FEDERAL CIRCUIT COURT OF AUSTRALIA

STRONG & WELCH [2014] FCCA 1376
Catchwords:
FAMILY LAW – Children – interim parenting arrangements – unacceptable risk.

Legislation:

Family Law Act 1975, ss.13C, 60B, 60CA, 60CC, 61DA, 61F, 65DAA(5), 65F, 69ZT

Evidence Act 1995 (Cth), ss.135, 136, 140
Federal Circuit Court Rules 2001
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Cowling & Cowling [1998] FamCA 19
Cilento & Cilento (1980) FLC 90-847
Griffiths & Griffiths (1981) FLC 91-064
Rainer & Rainer (1982) FLC 91-239
Deacon & Castle [2013] FCCA 691
Briginshaw v Briginshaw (1938) 60 CLR 336
Jones & Dunkel (1959) 101 CLR 298
Brandi v Mingot (1976) 12 ALR 551
Amador & Amador (2009) 43 Fam LR 268
MRR & GR [2010] HCA 4
Applicant: MS STRONG
Respondent: MR WELCH
File Number: PAC 418 of 2014
Judgment of: Judge Harman
Hearing date: 15 May 2014
Date of Last Submission: 15 May 2014
Delivered at: Parramatta
Delivered on: 15 May 2014

REPRESENTATION

Counsel for the Applicant: Mr Morley
Solicitors for the Applicant: Blackwell Short Lawyers
Solicitors for the Respondent: Ms Willis of Whiteley Ironside and Shillington
Solicitors for the Independent Children's Lawyer: Ms Friend of Legal Aid NSW Dubbo Family Law

ORDERS

  1. Grant leave to the legal representatives for the parties and the Independent Children’s Lawyer to inspect material produced on subpoena by (omitted) Public School, NSW Police, the Department of Family and Community Services and the (omitted) Early Learning Centre.

  2. Discharge all prior Parenting Orders with respect to the children X born (omitted) 2006 and Y born (omitted) 2010.

  3. Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y at such times as they are in their respective care. 

  4. Pending further Order, X and Y shall live with their mother. 

  5. Pending further Order, X and Y shall spend time and communicate with their father as follows:

    (a)During school terms each alternate weekend from the conclusion of school or day care Friday until the commencement of school or day care Monday following (extending to a Tuesday if a long weekend), first such period to commence Friday 23 May 2014;

    (b)Each Wednesday during school terms from the conclusion of school or day care until 6pm;

    (c)For one half of each short New South Wales school holiday period agreed between the parents or failing agreement from 10am on the first Saturday of the school holiday period until 5pm on the middle Saturday of the holiday period;

    (d)For a period of time on each of the children’s birthdays as agreed between the parents and failing agreement:

    (i)If a school day from 3pm until 6pm;

    (ii)If not a school attendance day then from 1pm until 6pm.

  6. For the purpose of the children passing into their father’s care for the above periods, the father shall be responsible for collecting the children from their school or day care centre, or if not a day on which they are attending school, from the mother’s home…

Continue reading STRONG & WELCH

Sign in free to access the full text

Details
AGLC
Strong and Welch [2014] FCCA 1376
Case
[2014] FCCA 1376
Decision Date

CaseChat Overview and Summary

This matter came before Judge Harman concerning parenting orders for two children, X and Y. The dispute involved allegations of abuse and concerns regarding the children's welfare, leading to applications for specific parenting arrangements.

The court was required to determine the appropriate parenting orders for X and Y, considering the evidence presented and the relevant provisions of the *Family Law Act 1975*. A significant issue before the court was the application and weight of evidence, particularly in light of section 69ZT of the *Family Law Act 1975*, which modifies the strict application of the *Evidence Act 1995* in child-related proceedings. The court also had to consider the admissibility and probative value of hearsay evidence and evidence presented by a self-represented litigant.

Judge Harman reasoned that while section 69ZT of the *Family Law Act 1975* allows for the admission of evidence that might otherwise be inadmissible under the *Evidence Act 1995*, the court retains discretion under sections 135 and 136 of the *Evidence Act 1995* to refuse or limit evidence if its probative value is outweighed by the danger of unfair prejudice, confusion, or undue waste of time. The court noted that due process must be afforded to all parties, regardless of their representation status, and that rules of evidence apply equally. Applying these principles, the court indicated that little weight would be attached to material that did not comply with the modified rules of evidence. The court also considered the standard of proof required for findings of "unacceptable risk," determining it to be the civil standard on the balance of probabilities, applied at its highest level due to the gravity of the allegations.

The court made several orders, including granting leave for inspection of subpoenaed material. Crucially, all prior parenting orders were discharged. The court ordered that each parent would have parental responsibility for the children when they were in their respective care. Pending further orders, the children were to live with their mother, and specific arrangements were made for the children to spend time with and communicate with their father, including during school terms and holidays. Further orders addressed the practicalities of the children passing between parents, daily telephone contact, the exchange of essential information regarding the children's schooling and health, and a prohibition on discussing the proceedings with the children. Additionally, by consent, the mother was ordered to ensure her former partner, Mr C, had no contact with the children.

Orders

Orders of the court

1.

Grant leave to the legal representatives for the parties and the Independent Children’s Lawyer to inspect material produced on subpoena by (omitted) Public School, NSW Police, the Department of Family and Community Services and the (omitted) Early Learning Centre.

2.

Discharge all prior Parenting Orders with respect to the children X born (omitted) 2006 and Y born (omitted) 2010.

3.

Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y at such times as they are in their respective care.

4.

Pending further Order, X and Y shall live with their mother.

5.

Pending further Order, X and Y shall spend time and communicate with their father as follows:

(a) During school terms each alternate weekend from the conclusion of school or day care Friday until the commencement of school or day care Monday following (extending to a Tuesday if a long weekend), first such period to commence Friday 23 May 2014;

(b) Each Wednesday during school terms from the conclusion of school or day care until 6pm;

(c) For one half of each short New South Wales school holiday period agreed between the parents or failing agreement from 10am on the first Saturday of the school holiday period until 5pm on the middle Saturday of the holiday period;

(d) For a period of time on each of the children’s birthdays as agreed between the parents and failing agreement:

(i) If a school day from 3pm until 6pm;

(ii) If not a school attendance day then from 1pm until 6pm.

6.

For the purpose of the children passing into their father’s care for the above periods, the father shall be responsible for collecting the children from their school or day care centre, or if not a day on which they are attending school, from the mother’s home at the commencement of each period and the father shall return the children to the child’s school or day centre at the conclusion of each period, or if not a school attendance day to the mother’s home.

7.

Each parent shall be entitled to telephone and speak with the children each day on which they are not or have not been in their care and by telephoning the other parent between 6:30pm and 7:30pm on a number to be provided by that parent and with respect to same:

(a) The parent with whom the children are at that time shall make them available to speak with the other parent without interruption, distraction and with privacy; and

(b) They shall ensure their phone is switched on, charged, in credit and in mobile service area.

8.

Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to allow, enable and permit:

(a) Each parents’ details to be recorded with the children’s school or day care centre as both a parent and emergency contact person;

(b) Each parent to obtain from the children’s school or day care centre such information, materials, documents, reports, copies of photos or other materials as they may desire.

9.

Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the children or any of them, such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with the children or any of them if hospitalised.

10.

Each parent shall keep the other advised at all times of their current residential address (and thus the address at which the children will live whilst in their care) and a contact telephone number to facilitate telephone communication as above.

11.

Each parent shall be and is hereby restrained from discussing these proceedings or any issue or allegation raised in these proceedings with the children, or allowing, causing or permitting any other person to do so, save:

(a) The Independent Children’s Lawyer;

(b) Any Family Report writer;

(c) Any Child Welfare Officer or Police Officer; or

(d) Any Counsellor upon whom the children are attending whether through their school or otherwise.

12.

By consent the mother shall ensure that her former partner Mr C does not come into contact with the above children at any time or by any means.

13.

For the purpose of the above Orders:

(a)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The second issue that arises relates to that observed at the commencement of the proceedings. The application or consequence of non-application or non-compliance with rules of evidence. In that regard I commence by repeating the observations made by me in Deacon & Castle [2013] FCCA 691 in paragraph 63 to 88 thereof and which I repeat herein:Rules of evidence generally63. These proceedings, dealt with as they are pursuant to Part VII Division 12A of the Family Law Act 1975, are not the subject of strict application of certain portions of the Evidence Act.64. Division 12A and, in particular, section 69ZT(1) provides:(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41; Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions. (b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections); (c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character). 65. Section 69ZT(1) is subject always to sub-sections (2) and (3) which provide:(2) 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). (3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if: (a) the court is satisfied that the circumstances are exceptional; and (b) the court has taken into account (in addition to any other matters the court thinks relevant): (i) the importance of the evidence in the proceedings; and (ii) the nature of the subject matter of the proceedings; and (iii) the probative value of the evidence; and (iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. 66. I have not taken the step of seeking to declare my satisfaction that the circumstances of the proceedings are “exceptional” such that the rules of evidence would apply strictly to the totality of the proceedings or any specific portion thereof.67. I did, at the commencement of the trial, make clear to the parties that section 69ZT(2) would have significant impact on these proceedings (for reasons that I will explain in detail shortly) and as a consequence of its application that little, if any (emphasis added), weight would be attached to material which did not comply with the portions of the rules of evidence otherwise expressed not to apply as a consequence of section 69ZT.68. Similar issues were apprehended as regards evidence relating to statements suggested to have been made by the children or either of them and admissible as a consequence of section 69ZV which provides:(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings. (2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay. (3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2). (4) This section applies despite any other Act or rule of law. (5) In this section: "child" means a person under 18. "representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct. 69. It is to be noted that section 69ZV includes a similar provision to section 69ZT(2) in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.70. Germanely, it is important to note that Division 12A does not exclude Part 3.11 of the Evidence Act dealing with discretionary and mandatory exclusions.71. Sections 135 and 136 of the Evidence Act provide:135. 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. 136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing. 72. The general discretion to exclude or limit the use of evidence pursuant to sections 135 and 136 has some real application to these proceedings (and any proceedings subject to Division 12A) and, in particular, the weight attached to evidence which would not, but for the provisions of Division 12A, be admissible and the weight, if any, to attach to that evidence so admitted. That is particularly so as regards substantial portions of the material filed in Mr Castle’s case.73. It is to be noted that until shortly prior to the hearing of the matter that Mr Castle was self represented (indeed when the matter was initially listed for hearing in February 2013 Mr Castle remained self represented). Thus, Mr Castle has prepared material on his own behalf and without the benefit, assistance and guidance of an attorney.74. Notwithstanding the above, it is to be observed that due process must be afforded to both parties. It is not appropriate to nor will the Court allow favour to a party and differentially apply rules of evidence based upon whether a party is represented or not.75. Whilst it is common for parties before this Court to be self represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.76. One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the Court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice. 77. The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.78. The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the Court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.79. It is to be noted that the Federal Circuit Court Rules 2001 provide for the order in which evidence is to be given and submissions made by parties (Regulation 15.02) and orders were made, at the time hearing dates were fixed, for the filing of Affidavit material by each party. Those orders provided and envisaged that each party would file an Affidavit and do so sequentially.80. Ms Deacon has filed and relied upon an Affidavit in these proceedings. Mr Castle has sought to file and rely upon a considerable number of Affidavits including Affidavits in reply to Ms Deacon and her witnesses. This has made the consideration of material far more complex but ultimately has been an allowance extended to Mr Castle on the basis of his prior self representation.81. Partially in reliance upon the above leniency, leave was also granted to Ms Deacon to identify and tender a proof of evidence in response to Ms Deacon's Affidavits and particularly his most recent Affidavit sworn and filed only some days prior to the hearing.82. My concern regarding the voluminous material filed by Mr Castle relates not only to its volume, its difficulty to follow (for example there being numerous Affidavits all dealing with the same incidents) and the inclusion of material that would appear largely, if not completely, irrelevant. I am further concerned, however, that Mr Castle has, with respect to significant elements of his case:(a) Sought to rely entirely upon hearsay evidence. This has been particularly so as regards as the suggested “dragging” of X at school changeovers in late 2009/early 2010 (one of the more significant issues raised); and(b) Sought to adduce evidence by third parties by annexing to his material documents or statements produced by them (including, in one case, a document addresses “To The Presiding Magistrate”).83. I made clear to the parties before reading and considering any of their material and before either party was called for cross examination that no weight would be attached to such material (and which could not appropriately be described as evidence). This was particularly so by reference to sections 135,136 and 140 of the Evidence Act.84. Section 140 of the Evidence Act provides:(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:the nature of the cause of action or defence; and the nature of the subject-matter of the proceeding; and the gravity of the matters alleged. 85. This reflects a codification of what has previously been referred to as the “Briginshaw scale” (Briginshaw v Briginshaw (1938) 60 CLR 336).86. On the basis that I am asked by each of the parties, and for different reasons, to make a finding of “unacceptable risk”, I am satisfied that the standard of proof which I must apply with respect to such determination is impacted section 140 and thus involves proof on the balance of probabilities but to a level approaching but not reaching the criminal standard. This is particularly so having regard to the subject matter of the proceedings and the gravity of the matters alleged, that is, a physical assault upon the child (as alleged by Mr Castle of Ms Deacon) or psychological or emotional abuse of X (as alleged of Mr Castle by Ms Deacon). On that basis I can do nothing other than apply the civil standard at its highest possible level and exclude or place no weight on material that is unreliable, prejudicial or subject to exclusion but for the provisions of s.69ZT.87. In connection with those matters, I am concerned that material sought to be introduced in such fashion, particularly by Mr Castle (being hearsay, unsworn testimony by unidentified third parties and the like) is unfairly prejudicial to Ms Deacon who cannot test such evidence nor seek to challenge it in any fashion nor respond to it. Thus, whenever such issues have arisen in the evidence (which I will attempt to identify specifically but which would be clear from any consideration of Mr Castle’s material) I propose to refuse to admit the evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing. Alternatively, the material can be viewed as admitted pursuant to Division 12A but accorded absolutely no weight (and with the same consequence-it will not be relied upon). Indeed, the probative value of such evidence (being unsworn hearsay) is so little that on either of the above bases it could not be relied upon as its value would be entirely outweighed, particularly by reference to section 140, by its prejudice or potential to cause injustice.88. No adjournment of proceedings has been sought to remedy the evidential defects of Mr Castle’s case and notwithstanding that the approach which I propose to adopt and have so adopted was made clear prior to the evidence commencing.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.