Tindle and Thomas (No 2)

[2012] FamCA 937

FAMILY COURT OF AUSTRALIA

TINDLE & THOMAS (NO 2) [2012] FamCA 937

FAMILY LAW – Evidence Act 1995(Cth) – Relocation

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

APPLICANT: Ms Tindle

RESPONDENT: Mr Thomas

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10507 of 2011

DATE DELIVERED: 12 November 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Mr Hutchins

SOLICITOR FOR THE RESPONDENT: Tolhurst Druce & Emmerson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That in accordance with s 69ZT(3) of the Family Law Act 1975 (Cth), the provisions of the Evidence Act 1995 (Cth) shall apply to these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tindle & Thomas 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 10507  of 2011

Ms Tindle

Applicant

And

Mr Thomas

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I am conducting a final parenting hearing between the parties in which the wife seeks to move to live in Country B with the 5 year old daughter of the parties. Country B is the wife’s ancestral home; it is where her extended family still live. The parties met there when the husband was employed as a tradesman on a visa.

2. The husband opposes the move back to Country B.

3. At the outset of the hearing, there was common ground that two burning issues upon which factual findings will be needed concern allegations against the husband of family violence specifically towards the wife but also threats concerning the child. Secondly, there is an issue of the wife’s state of health. There is not much argument that the wife has suffered depression in the past. The issues are controversial are all counsel seemed to agree that findings relating to these two issues may affect the ultimate outcome.

4. Counsel for the husband raised s 69ZT of the Family Law Act 1975 (Cth) (“the Act”) and whether its application should be applied. Counsel for the wife was not opposed to its application but wanted it limited to the family violence question.

5. Counsel for the Independent Children’s Lawyer submitted that he did not oppose the rules of evidence being applied. What briefly follows, are my reasons.

6. In a parenting case, to apply the evidentiary rules, the Court must be satisfied that the circumstances are exceptional.

7. 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, to make another order or to give a direction in relation to the evidence.

8. A major issue will be family violence because the wife’s affidavit is replete with precise accusations all of which are hotly denied by the husband. Each of those allegations is very serious and has an impact on the appropriateness of a parent.

9. If findings were made that the events occurred as described by the wife, the presumption of equal shared parental responsibility could be rebutted. That may mean that the pathway of determination could be different.

10. The current parenting arrangements permit limited time between the husband and the child predominantly because he works full time and has had much lesser responsibility for the care of that child as time passed by. In his opening remarks, counsel for the husband made it clear that the husband was not seeking more than a regular (but significant) role in the child’s life.

11. It also goes without saying that although the wife has offered significant contact if she moves to Country B, there will be an argument that such things as holiday blocks several times a year and “Skype” are not a substitute for physical care. The evidence of the family consultant also raises questions of reviewing the question of a relocation down the time track as distinct from setting a sundown point at which the overseas trip might occur. On any view therefore, the move to Country B would have significant ramifications for all parties and the child.

12. 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, it is exceptional.

13. 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, particularly where there is a dispute about family violence within a home which it seems is not independently corroborated, the rules of evidence provide a framework so that there is less doubt about what should be received and what should not.

14. 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.

15. 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 Act1995 (Cth) shall apply.

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 November 2012.

Associate: 

Date:  13 November 2012