Tarelli and Langley (No 2)
[2020] FamCA 196
•4 March 2020
FAMILY COURT OF AUSTRALIA
| TARELLI & LANGLEY (NO. 2) | [2020] FamCA 196 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks that the final hearing dates be vacated and that the proceedings be stayed until his criminal proceedings are determined – Where the father’s right to silence to not incriminate himself is found to override the necessity for the Court to determine to finality where it is in the best interests of the child that he live – Where the child is not at any immediate risk of harm in father’s care – Father’s application is successful – Trial dates vacated until father’s criminal charges determined. |
| Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) s 60CC |
| Re K (1994) FLC 92-461 De Luca & Martinelli [2016] FamCA 207 |
| APPLICANT: | Mr Tarelli |
| RESPONDENT: | Ms Langley |
| INTERVENOR: | Department of Communities and Justice |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 4311 | of | 2014 |
| DATE DELIVERED: | 4 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 21 February 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Adam Jones Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Shaw |
| SOLICITOR FOR THE RESPONDENT: | F W Ewart & Ewart |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office |
Orders
The Final Hearing dates on 4, 5, 6, 7, 10, 11 and 12 August 2020 are vacated.
The matter will remain in Justice Henderson’ docket for future management and Registrar McGrath will remain as the docket Registrar.
Upon determination of the father’s criminal charges, this matter will be listed for final hearing forthwith and as soon as is possible.
The matter is listed for mention on 4 August 2020 at 10am to determine the progress of the father’s criminal matters.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarelli & Langley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 4311 of 2018
| Mr Tarelli |
Applicant
And
| Ms Langley |
Respondent
REASONS FOR JUDGMENT
The matter of Tarelli and Langley is an interim Judgment in relation to the wife’s application filed 2 January 2020 to confirm final hearing dates listed in August 2020.
The respondent father has responded to that application seeking that the hearing dates be vacated due to pending criminal charges in relation to himself which are currently before a Local Court on a committal basis.
Mr Schonell SC acted for the mother, Mr Shaw of counsel for the father. The Independent Children’s Lawyer was represented by Ms Robertson and on another occasion Ms Messner, and the Intervenor was represented by Ms Moss. The mother has, on some occasions, appeared unrepresented.
Background
On 11 July 2019, I listed the matter for final hearing for seven days commencing 23 April 2020 in relation to parenting and property. By consent, Orders and directions were made for trial, including the appointment of an expert. The listing was subsequent to a successful appeal by the mother with Reasons delivered by the Appeal Court on 21 February 2019 in relation to the decision of her Honour Justice Cleary, handed down on 27 June 2018.
Foster J transferred the matter to the Sydney Registry for a rehearing following that successful appeal in June 2018, and the matter came before me to allocate an expedited hearing date. When the expedited hearing date in April 2020 was allocated, the father was not facing any criminal charges.
On … October 2019, the father was charged with 20 offences, relating to sexual assaults, sexual intercourse without consent, acts of indecency, intimidation and threatening behaviour, all towards the mother during the period of the relationship and post their relationship, spanning a time period from the first complaint in 11 October 2012 to 9 March 2015 being the last complaint.
The complaints of the father’s behaviour towards the mother were made some four years after the last allegation of poor behaviour was made, five years after separation and after the Full Court handed down its decision on 21 February 2019.
On 19 September 2019, the matter had come before me and I made an Order appointing Professor TT as the single expert to prepare a further report and gave the parties leave to relist the matter if the letter of instruction to the expert could not be agreed. The letter of instruction was not agreed.
On 15 November 2019, the matter came before me again to determine inter alia issues concerning the letter of instruction, objection to subpoena, the making of a section 102NA Order in respect of the mother who was at that time self-represented and this declaration was made, and to allocate new hearing dates following the father being charged with 20 criminal offences. He had been bailed in respect of those charges on 28 November 2019, some two weeks after 15 November 2019, however that prospect was fairly obvious on 15 November.
On 11 December 2019, the matter came again before me wherein I allocated new hearing dates on 4, 5, 6, 7, 10, 11 and 12 August 2020, and listed the matter for mention on 1 June 2020. Order 2 of my Orders made that day reads as follows:
The Court notes that on the next occasion it will be known whether the father will be committed for trial and whether the final hearing dates are able to be maintained.
That next occasion was June 2020.
The mother filed an Application in a Case on 2 January 2020 seeking that, on an interim basis, the child live with her.
On 14 January 2020 in Chambers, I directed that interim application be heard with the final hearing. The mother sought a review of the decision believing it had been made by a Registrar of the Court.
I listed the matter on 12 February 2020 for directions, as it was clear there had been no agreement in relation to the terms of reference for the expert. At this Court event, Mr Schonell SC acted for the wife, Mr Shaw for the father and Ms Moss for the Intervener. Ms Robertson for the Independent Children’s Lawyer appeared by phone.
On that occasion, I listed the matter on 14 February 2020 at 10 am in relation to the mother’s application that the August final hearing dates be confirmed no matter the status of the father’s criminal hearings, and stood her Application for Review over to that date.
Additionally I made directions for trial, noted the witnesses for the parties, and in particular, that Dr H’s report, a report prepared for the hearing before Cleary J, would not form part of the evidence before this Court and would not be provided to Professor TT, and reserved my decision in relation to the terms of reference.
On 14 February 2020, I delivered the terms of reference Judgment and made the following Orders:
a)I listed the father’s interim application on 21 February 2020 for hearing by way of submission to vacate the final hearing dates, being his response to the mother’s application to confirm the final hearing dates and any matters flowing from that application.
b)I ordered the father to file and serve written submissions in relation to this issue by close of business 20 February 2020 together with other matters not relevant to this Judgment.
On 21 February 2020, Ms Messner acted for the Independent Children’s Lawyer. Otherwise, all appearances were as before.
On that occasion, I made Orders as to the payment for Professor TT’s report, directed the material the single expert was to be provided with, and granted leave to the parties to issue as many subpoenas as they deemed appropriate. However if there was an argument as to what subpoena material the expert was to view, that issue was to be dealt with by the docket Registrar, being Registrar McGrath, by arrangement with him.
This Judgment is in relation to the applications heard on 21 February 2020 which were dealt with by way of written submissions, in effect.
For the mother, I read the following:
c)Application in a Case, filed 14 January 2020 and the annexures to those documents, importantly, the charge history of the father.
d)Application in a Case, filed 31 January 2020 in relation to the review and the Affidavit in support;
e)Application in a Case, filed 22 January 2020;
f)Affidavit, sworn 29 January 2019;
g)A report letter of Professor G, her treating psychiatrist, dated 10 February 2020;
h)Case Outline filed by Mr Schonell when the matter had come before me on 12 February 2020; and
i)Case Outline provided by Mr Schonell on 21 February 2020, together with the schedule of cross-examination of the father before Cleary J and a schedule and the actual transcript in support of the mother’s case that the father has, by his answers to cross-examination, revealed his defence to the criminal charges he now faces.
For the father:
a)Three Affidavits of his solicitor, Mr Ewart, dated 12 November 2019; 13 February 2020; and 18 February 2020.
b)The father’s Response to the mother’s Application in a Case, which he filed on 20 February 2020.
c)The initial written submissions and supplementary submissions provided by Mr Shaw which included references to the case law. I will refer to this later.
The Independent Children’s Lawyer and the Secretary have no position in relation to this argument and properly submitted it is a matter for the Court.
Short Relevant Chronology
The parties met in April 2012.
The parties commenced cohabitation in September 2012.
The child, D, was born on … 2013.
The parties separated on 23 December 2013.
From separation until around about 14 September 2017, the mother had been the child’s primary carer and the father had spent limited time with him.
On 8 September 2017, the Secretary without notice filed an application in Court for sole parental responsibility for the chid. This Order was granted by Foster J in a lengthy written Judgment delivered by him on 14 September 2017 wherein, inter alia he refused the mother’s application for an adjournment.
The consequences of his Honour’s Orders was that the Department of Communities and Justice (“the Department”) was granted sole parental responsibility for the child. The child was then placed in the care of the Department who determined that D was to live with his father.
This decision was made in circumstances where on 15 March 2016 Dr H had prepared a Family Report recommending that the mother have sole parental responsibility and that the child live with her and spend time with the father.
On 23 October 2017, the final hearing commenced before Justice Cleary. The mother asserts Dr H in giving his evidence, and without notice, changed his recommendation from that in his report and concluded that D should remain living with the father. This is but one of the reasons why the report is not to form any part of the rehearing before me and I have not read that report.
The trial concluded on 13 November 2017.
On 23 April 2018, Judgment had not been delivered and the mother sought to reopen the hearing seeking leave to adduce further evidence. This application was opposed by the father, and the Department. The Independent Children’s Lawyer was agnostic.
On 27 June 2018, Cleary J delivered her Judgment in the substantive proceedings, including a Judgment regarding the reopening application, making Orders that D remain in the care of the father and not granting leave to re-open. The mother appealed, contending that there were many errors of both fact and law in both the parenting and property matters. The appeal was opposed by all the respondents.
On 15 February 2019, the Full Court heard the mother’s appeal and at the conclusion of the appeal, all respondents consented to the appeal being allowed, having regard to the errors of law and fact. Of significance in the Full Court’s decision, was the error in law in refusing to grant the reopening given the nature of the matters the mother wished to raise which could have had an impact upon the reasoning of her Honour in her final Judgment.
As at today’s date, the child has not seen the mother for two years despite there being an Order for her to spend supervised time with him. It is the mother’s case, supported, she says, by medical opinion from Professor G, her psychiatrist, that she is suffering from post-traumatic stress symptoms which symptoms are 100 per cent attributable to the behaviour of the father. That she cannot see D in a supervised setting knowing that he will return to the father as to do so will reactive, exacerbate and continue her symptoms of Post-Traumatic Stress Disorder (“PTSD”).
The facts are that the child lives with his father, the father’s partner and their child, and his sister, there is supervision of this family by the Department and they still hold sole parental responsibility. This sole parental responsibility Order and the child living with the father is pursuant to Foster J’s Orders of 14 September 2017 and these are the extant Orders relating to his care.
The Mother’s Submissions
The mother’s case is that the father perpetrated significant and concerning violence upon her during the relationship and post the relationship, that she was the child’s primary carer, and that the child should be living with her.
The mother also submits that she has not spent any time with the child since her Honour reserved her decision in October 2017, and that she cannot maintain her relationship with the child whilst he is in the care of the perpetrator of the violence upon her, the cause of her PTSD.
The most recent report of Professor G dated 10 February 2020, opined as follows, at page 1:
As much as she would like to see [D], [Ms Langley] is unable to see her son in the current circumstances because doing so would trigger PTSD symptoms that are attributable to the behaviours of [Mr Tarelli] (with whom [D] is currently living). The main triggers for [Ms Langley] when her PTSD is triggered include flashbacks of the trauma, hyperventilating, hypervigilance and avoidance of triggering stimuli.
Professor G further stated, at page 2 of his report:
The harms to [Ms Langley] of extending the period of separation from her son include a consolidation of the harm inflicted on her by [D’s] removal in the first place, namely, the perpetuation of an intolerable predicament (her genuine and real inability to see her son in the current circumstances, together with her suffering from psychological distress at being able to see her son) and the inability to treat her PTSD. [Ms Langley’s] therapy is largely of a supportive nature - I am somewhat hamstrung treating her PTSD effectively in the context of [D’s] current placement with his father.
Professor G goes on to say in his view, Ms Langley is a genuine victim.
A further submission was the Court’s determination and findings in relation to the mother’s allegations of family violence which are now, as I see, in large part constituted in the 20 criminal charges against the father, which permeates this matter and all considerations under section 60CC of the Family Law Act 1975 (Cth) (“The Act”).
These behaviours and findings in relation to these behaviours are a crucial part of the Court’s determination in whether this child should remain in his father’s care or live with his mother.
That is incumbent upon the father to advise the Court when his criminal charge is likely to be heard and a verdict against him or acquitting him is likely to be known. This knowledge is an impossibility at this stage as the father’s committal hearing is yet to commence.
That the current situation for the mother arises as a consequence of the conduct and behaviour of the father which has led her to be unable to maintain a relationship with her son which in August 2020 would be approximately three years. That the child is suffering from not spending time with or having a relationship with his mother and the mother contends this sad state of affairs is all down to the father’s behaviour.
Mr Schonell referred to the Full Court decision of Re K[1]in his submissions. There is no doubt that case is, in part, authority for the proposition that a Court can consider continuing a matter in the family law jurisdiction even if one of the participants is facing criminal charges in another place.
[1]Re K (1994) FLC 92-461.
In that decision, their Honours say:
The question whether the Court should make interim or final orders depends ultimately upon the circumstances of the individual case. However, that decision is to be made solely against the criterion of the welfare of the child. The circumstances alone that one of the parties has criminal charges pending would not justify an adjournment. In most cases the child's welfare would not be served by his or her custody remaining in abeyance over what might be a substantial period of time pending the outcome of proceedings in the criminal courts.
Generally a child is benefited by certainty and regularity in his or her life.
Any perceived disadvantage to the party is secondary to considerations of the welfare of the child. The outcome of the criminal proceedings may justify a subsequent application.
Their Honours went to say:
So far as the “right of silence” and any wider question of potential prejudice in the parties’ subsequent proceedings are concerned, we consider that the position was correctly stated by Young CJ, namely that it would be a rare case where that alone would justify an adjournment. Ultimately, in this jurisdiction, it is a question of the welfare of the child. The circumstances of the individual case may be such there would be no significant prejudice to the child’s welfare by delay of the proceedings pending the outcome of the criminal charge….However, where that is not the case, ordinarily, it would be expected that this Court would proceed to determine the case and make such orders as it considered being appropriate. The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege.
Secondly, the mother contends the father has chosen to waive his right to silence by electing to give evidence in relation to the mother’s allegations of his poor behaviour and treatment by her at the trial before Justice Cleary which defence was a denial by him of such behaviour.
Thirdly, in the trial before me, the father can determine to give or not give evidence and if compelled so to do can seek the protection of a Certificate under the 128 of the Evidence Act 1995 (Cth) (“the Evidence Act).
The Father Submissions
The father’s submissions, summarised, are as follows:
a)The father contends that he has not waived his right of silence in the proceedings before Justice Cleary, as at that time there was no criminal charges pending against him.
b)That it is a very different spectre for a person being cross-examined about alleged behaviour to being cross-examined about alleged behaviour which behaviour is the subject of criminal charges against you in another place.
c)That the father will be placed in an interoperable forensic situation vis-à-vis his criminal charges and not being able to give evidence to support his case that the child continue to live with him. He will be compromised in the giving of his evidence, which is how I read that submission.
d)That the charges the father now faces are in addition to allegations raised and answered by him and put to him in cross-examination at the trial before Justice Cleary and they encompass far more than was traversed at that hearing and were laid against him on 19 October 2019.
e)That the facts in the decision of Re K are vastly different to the facts in this matter. That this is not a case to use their Honour’s words in Re K, where the use of the word “ordinarily” is appropriate.
f)In Re K, the father killed the mother of his child and the child was awaiting determination of, as it was then, his custody being competing applications between relatives of the father and relatives of the mother. The father did not contest custody of the child, rather supported the application of his mother and sister. The contested hearing was between the mother’s family who wished to take the child to America and his family who wished for the child to remain in Australia.
At the outset, one of the most significant differences in the matter before me and in Re K is that in this matter the child is living in accordance with Orders made by the Court, being Orders of Foster J on 14 September 2017 and those Orders are the extant Orders. The child has continued to live in accordance with those Orders and the consequences of those Orders which is that the department has sole parental responsibility and has placed the child in the care of the father.
CONCLUSION
My findings are as follows. As difficult as it is for the mother to accept, the child has been living in a stable and well-settled environment for three years and his custody is not in a state of flux as the child’s custody was in Re K. I accept the mother does not agree with where he is living or that he should be living there but that is a different matter.
As their Honours say In Re K, “Generally, a child is benefited by certainty and regularity in his or her life”. It cannot be contended otherwise than that this has been the case for this child.
It cannot be argued by the mother that the child does not have certainty or regularity. He lives with his father, his father’s partner, and his sister and the department has an overarching and supervisory role in his care.
It cannot be argued there is a risk of harm to this child physically, given the continued supervision of the department, or an immediacy of a risk of harm to the child. It can be argued that there is a risk of harm to this child in this situation continuing in that he has not seen his mother and/or not living with his mother, and/or living with the person who it is alleged has perpetrated significant violence upon his mother and all that comes with such sad events.
This unacceptable reality for the mother has in part come about due to the mother’s apparent inability to spend time with her child, despite having an order to do so, due to her PTSD which she asserts she now suffers due to the treatment the father meted out to her during the relationship. Further, she says, her PTSD will flare up if she sees the child whilst soever he lives with the father. Thus, this circular argument leads her to the conclusion she is unable to spend time with her child, or perhaps these circular consequences lead her to this conclusion.
It is the mother’s case that it is the consequences of the father’s behaviour towards her that has led to this unacceptable reality for her. For it is clear the father does not mount a case that the child should not spend time with the matter. He is desirous of that happening, it would appear.
What this Court is being asked to do by the mother’s application in the substantive proceedings is to reverse the child’s current stable and regular living arrangements which have been in place for over two years now, approaching three years, on the basis of the father’s alleged violent and appalling treatment of her during and post the relationship, which behaviour is now the subject of 20 criminal charges as a result of her complaint to police in 2019.
There was no risk to the father’s right to silence or his criminal offence in the Court determining the child’s custody in Re K prior to his criminal trial, as I see it. For the contest there was between parties who had no involvement in that disgraceful event the father perpetrated. This is a vastly different fact situation than that now before me. The contest here is between the parents and from the mother’s point of view, the perpetrator of violence against her. The perpetrator of violence against her is the very person faced with 20 criminal charges which came about due to her complaint to police in 2019, some five years after separation, four years after the date of the last complaint and sometime after the Full Court delivered its decision in 2019.
I accept the submission by the father that his right to silence and defence to his criminal charges would be significantly compromised if he answers questions in cross-examination which go to the very heart of the decision I am asked to make, namely, “Did he perpetrate this appalling behaviour, as alleged, upon the mother?” The provision of a section 128 Certificate is not an answer to his right to silence, as I see it on these facts.
Secondly, if the father exercises his right to silence, as he is entitled to do, the family law proceedings will be compromised, as the Court will not have evidence before it that it needs to make this very difficult and delicate decision. For if the mother is correct and these charges are found to be correct and/or the allegations she makes of poor and violent behaviour are accepted by this Court, it would be a serious matter impacting directly on the court’s decision to make an Order in the child’s best interests as to which parent he should live with.
I cannot see how the Court can have placed before it the proper evidence it needs to make this important and serious decision if the father, as is his right, exercises his right to silence. Only if a certificate is issued will there be the prospect of the necessary evidence being revealed. However, it cannot now be known where cross-examination of the father will go. Even if a 128 Certificate is issued this may not be a sufficient protection to protect his right to silence given the serious criminal charges he is facing.
I do not accept the submission by the mother that the father waived his right to silence in his cross-examination before Cleary J in any practical, let alone a legal sense. I have looked at the transcript, I have looked at the schedule, and I have ascertained that at most there were or he was cross-examined on incidents on the following dates:
a)8 January 2014;
b)December 2013;
c)12 January 2014;
d)15 January 2014;
e)21 January 2014;
f)23 November 2019;
g)13 November 2013;
h)20 May 2014; and
i)30 May 2014
At most, 10 incidents.
The father now faces criminal charges related to events commencing on the following dates:
a)11 October 2012;
b)December 2012;
c)August 2013;
d)12 November 2013;
e)2 December 2013;
f)26 December 2014;
g)29 December 2013;
h)8 January 2014;
i)9 January 2014;
j)12 January 2014;
k)15 January 2014;
l)21 January 2014;
m)6 February 2014;
n)7 February 2014;
o)3 March 2014;
p)30 March 2014;
q)November 2014;
r)17 November 2014;
s)9 March 2015; and
t)3 May 2019.
These are far more extensive dates than the husband was cross-examined on at the trial.
He has been charged with eight sexual assaults and eight sexual assaults without consent together with other assaults, one stalk and intimidate, and damage property. There is a significant difference to the matters the husband, was cross-examined on at trial and the chargers that have now been laid. They are specific and fulsome and all these matters were not put to the father during cross-examination, how could they be? There were no criminal charges pending at that time.
The right to silence is a tenet of our criminal justice system, as is the paramountcy of the welfare of a child in the family law system. In this matter, these two important legal and societal principles have collided. The possibilities are that the court would not compel the father to give evidence about his poor behaviour and violence to the wife which would be the subject of criminal charges he was facing or would compel him to give such evidence and then provide a section 128 Certificate.
Compelling a party to give evidence when there is a possibility of a potential criminal charge was dealt with in a decision of his Honour Berman J in De Luca and Martinelli.[2] That decision is a vastly different decision to that which I am tasked to determine, namely, compelling a witness to give evidence about behaviours the very subject of the criminal charges he faces.
[2]De Luca & Martinelli [2016] FamCA 207.
In that case, his Honour granted a section 128 Certificate as the possibility of a criminal charge being brought if the evidence was given was clear. His Honour found, however, there was no pending investigation, there was no extant criminal proceedings and the totality of the matters alleged against the applicant were clearly contained in material well known to her and that a section 128 Certificate provides a protection not just in respect of the evidence to be lead but in respect of evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence and thus, the protection to the applicant was effectively absolute.
His Honour also argued at paragraph 48:
Whilst it might be argued that a certificate does not provide complete protection in respect of self-incrimination, I consider that in the circumstances of this case and taking into account the following:
(a)That the proceedings were listed for trial in the Federal Circuit Court of Australia and but for a transfer, the evidence would have been led and presumably the subject of response by the applicant in terms of her denial in paragraph 55 and 56 of her affidavit of 18 July 2014;
(b)That there is no pending investigation;
(c)That there are no extant criminal proceedings;
(d)That the totality of the matters alleged against the applicant are clearly contained in material well known to her;
(e)That s 128 of the Evidence Act provides protection not just in respect of the evidence to be led, but in respect of “evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence” (s 128(7)). The protection to the applicant is effectively absolute.
This is the difficulty I have in this matter and with the wife’s application. The facts of this matter are vastly different from that decision as well as in Re K. Serious criminal charges have been laid, and whether the behaviours the subject of those criminal charges are correct or not is crucial to the decision I, as the Judge, must make. What is at stake in this matter is where it is in the child’s best interests to live the remainder of his young life. The behaviours of his parents and an assessment of those behaviours is germane to this decision.
The behaviours the Court needs to examine and have tested are the very behaviours the subject of the criminal charges in the father’s case. The only way that these matters can be tested is through cross-examination. The father will be cross-examined on the very matters, upon which he faces serious criminal charges.
I am not in a position today to determine if I would compel the husband to answer the question, as they go to the heart of his criminal charges, and to do so I am denying him the right to silence. I accept the Court’s capacity to issue a 128 Certificate is a protection which is arguably absolute, in other proceedings.
However, where, as here the father’s liberty is clearly at issue in relation to a conviction on, not even all, but some of the charges he is facing, I have determined his right to silence is the most compelling reason for the adjournment of his hearing despite my sympathy with the plight that the mother and child find themselves in.
The allegations made by the wife to the police are now contained in 20 criminal charges which he must face. They are at the very heart of the matter I am tasked to determine, because they are behaviours of a parent who seeks to be a carer or have time with the child. Had there been no criminal charges pending, this matter would have been heard in August 2020.
I find that in these circumstances, the father’s right to silence to not incriminate himself overrides the necessity for this Court to act as quickly as is possible to determine to finality where it is in the best interests of the child that he live. Given that I have found that he is living in a stable and well-settled environment and there is no immediacy of danger, a risk of harm to him in continuing to live in this environment, save to say he does not spend time with or see his mother, the father’s application, I find, is successful and the hearing dates in August will be vacated.
I will retain this matter for management by myself with the assistance of Registrar McGrath and when the father’s criminal charges are determined this matter will be listed forthwith and as soon as is possible and it has an absolute priority in my docket. I will list the matter for mention on the first date of the trial which I have now vacated to determine the future progress of this matter.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 4 March 2020.
Associate:
Date: 1 April 2020