Whitecross and Reilly (No 3)

[2016] FamCA 316

FAMILY COURT OF AUSTRALIA

WHITECROSS & REILLY (NO 3) [2016] FamCA 316

FAMILY LAW – Evidence objection - Ruling

Family Law Act 1975 (Cth)

Evidence Act 1995 (Cth)

APPLICANT: Mr Whitecross

RESPONDENT: Ms Reilly

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2793 of 2008

DATE DELIVERED: 30 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 30 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McLeod

SOLICITOR FOR THE APPLICANT: Alta Vessali

THE RESPONDENT: Ms N.J. Reilly in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Kenna Teasdale Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Treyvaud

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitecross & Reilly (No 3) 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 2793 of 2008

Mr Whitecross

Applicant

And

Ms Reilly

Respondent

Independent Children’s Lawyer

RULING

1. This is a ruling at the commencement of this final hearing in relation to objections to evidence.  The objection is raised by the respondent mother in relation to two affidavits by Mr Whitecross, who is the father in the proceedings.  The notice itself does not make abundantly clear what the objection is until, in context, one reads the relevant affidavit paragraphs.  All linked in together in two affidavits, the paragraphs make a little bit more sense.  The objection seems to be the inclusion of the statement of a Ms E, which is in the form of a witness statement by her, and an affidavit filed in Family Law proceedings by a police officer who, some number of years before, had interviewed the then very young Ms E.  The objection is said to be that the evidence is hearsay, not sworn, and there is no providence in the documents sought.

2. Division 12A of the Family Law Act 1975 (Cth) (“the Act”) has specific provisions in relation to the amelioration of the rules of evidence, but ultimately ss 55 and 56 of the Evidence Act 1995 (Cth) are what governs the admissibility of evidence. Evidence is admissible if it has some probative value in respect of the determination of the issue before the Court. With that in mind, the annexure DW6 to the affidavit of 11 February 2016 has very little probative value. There is no temporal connection with the event as described. There are no details of what acts or facts constitute the sexual assault asserted, but combined with the subsequent affidavit of 2 March to which annexure DW6 is attached, a different picture could be said to have emerged.

3. DW4 to the second affidavit is an affidavit filed in the previous proceedings by a police officer.  Of that particular incident to which I have referred, the police officer deposed to the fact that she spoke to the child, who was the subject of the complaint at that time.  The child indicated quite specifically what her stepfather, Mr W, had done to her during the night in 1996.  That seems to have overcome my earlier comment about the absence of any temporal connection or the details of what constituted the sexual assault.

4. However, as a result of the complaint some two weeks later, the police officer went back to the child and spoke to her.  She found her reading the Bible at the dining room table and, when she entered the home, the child rushed into the hallway and curled up on the floor and began to cry.  She said she then spoke to the child alone in her bedroom.  The child told her that she lied about the complaint some two weeks before and that she had made it up because she wanted her mother’s attention.  She said she was jealous of her stepfather and her brother, K.

5. The police officer told the Family Court that she believed the child but she then spoke to another person who indicated that – and I quote:

   The wife attended the [X Town] Juvenile Aid Bureau in May 1996, demanding to withdraw her statement in relation to [E’s] previous complaint, believing it would speed up the process of having charges withdrawn against [Mr W], enabling him to return home.

6. Just exactly why that occurred is not a matter that I have to deal with but it seems that there is a question about whether or not the then 11 year old E was truthful.  The police officer said that E seemed confused about whether the incident she complained about had actually occurred.  That was only two weeks after she had made the quite precise statement in the interview.  It seems to me that this evidence is admissible but it may be so on the basis that it may prove that the incident did not occur as much as the fact that it did occur.  Either way, the testing of the evidence, absent Ms E, must be seen to have limited weight because of its probative value to the issue in dispute here.

7. What adds to the concern I have about the weight – or, more importantly, the lack of weight – is the fact that Mr P has spoken to E, who is now an adult and she who has confirmed the second part of what took place between she and the police officer and to which the police officer referred.  Rather than the child then being an adult, as she is now, she was a child.  She is now, as an adult, indicating to Mr P, who undertook the family consultant role here to advise the Court, that she was manipulated by her mother and that the incident about which she had complained was untrue.

8. It is difficult to make a ruling absent hearing all the evidence here but it seems to me, because of division 12A, that the evidence should be admitted, but at this point, subject to submission and cross-examination, it has very little probative value. I rule accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 30 March 2016.

Associate:  Elizabeth Hore

Date:  5 May 2016