ZARINS & MYLNE

[2013] FamCA 116

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE [2013] FamCA 116

FAMILY LAW – EVIDENCE – Question as to whether pursuant to s 69ZT(3) of the Family Law Act 1975 the Rules of Evidence apply

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

APPLICANT: Ms Zarins

RESPONDENT: Mr Mylne

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4802 of 2008

DATE DELIVERED: 28 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nguyen

SOLICITOR FOR THE APPLICANT: Patrick Liptack Lawyers

COUNSEL FOR THE RESPONDENT: Ms Parker

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

IT IS ORDERED THAT

1. The provisions of the Evidence Act 1995 (Cth) be applied to the proceedings in accordance with s 69ZT(3) of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne 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: ADC 4802  of 2008

Ms Zarins

Applicant

And

Mr Mylne

Respondent

REASONS FOR JUDGMENT 

1. This matter was listed for final hearing before me on 29 October 2012. On what would have been the second day of that hearing I was advised that the mother had been taken to hospital by ambulance and that following a psychiatric assessment was to be admitted to the hospital for a period of two to three days. The matter could not proceed.

2. As a result of those events the father made an oral application seeking the suspension of paragraphs 3, 5 and 7 of the orders of 14 May 2010 and an order until further order that the child of the relationship live with him. On 30 October 2012 I made the orders sought by the father with respect to the child’s care.

3. Prior to these events I had made some preliminary rulings in relation to procedural matters and the mother had sought the protection of a certificate pursuant to section 128 of the Evidence Act in relation to evidence with respect to allegations that she had falsified a medical certificate and a deed of trust and with respect to evidence in relation to the alleged death of her former partner.

4. This matter has now been listed for mention before me for the purposes of again listing the matter for a final hearing. I have made directions preparing the matter for trial in late July 2013. During the hearing I raised with Counsel for the father, Counsel for the mother and Counsel for the Independent Children’s Lawyer the question of whether s 69ZT(1) should apply or whether the evidence at the trial should be governed by the provisions of the Evidence Act 1995 (Cth) otherwise excluded by s 69ZT(1). The position of all parties was that in this case the provisions of the Evidence Act should apply and I agree.

5. In order to apply all or any of the provisions of the Evidence Act which by virtue of s 69ZT(1) do not apply the Court must be satisfied that the circumstances are “exceptional” and in determining whether the circumstances are “exceptional” must take into account the importance of the evidence in the proceedings, the nature of the subject matter of the proceedings, the probative value of the evidence, the powers of the Court (if any) to adjourn the hearing, to make another order to give a direction in relation to the evidence and any other matters the Court considers relevant.

6. In this matter there is a long history of allegations made by the mother of family violence and physical abuse of herself and the child by the father and on the father’s part allegations with respect to the mother’s failure to support the child’s relationship with him as demonstrated by what he says are unsubstantiated allegations. The mother has been found to have contravened previous orders of the Court.

7. Shortly before the aborted final hearing before me in October 2012 the mother amended her case which had until then been based upon what she said was a history of physical abuse on the basis that the abuse had not been substantiated and sought to rely upon Rice v Asplund [1979] FLC 90-725 in opposition to the father’s application that, because of the mother’s failure to support his relationship with the child and what he said was her repeated unsubstantiated allegations of abuse, the child should live primarily with him.

8. The father seeks sole parental responsibility for the child. The child has now been living with the father pursuant to my orders since 30 October 2012. Apart from the fact that the mother is spending only limited supervised time with the child this accords with his application, at least as it then was when the matter was listed for final hearing last year. Although it is clear that the mother wishes to increase the time she seeks to spend with the child it is not clear what orders the mother will now seek at the final hearing of the matter.

9. Of particular concern in this case is that I have been informed by Ms West on behalf of the Independent Children’s Lawyer that there have been further notifications to Families SA since that hearing and that the child has been interviewed on a number of occasions.   

10. In this case however the allegations of physical abuse and the veracity of the mother’s evidence with respect to those allegations are likely to be a significant issue at the trial and any findings with respect to those allegations may have a significant impact on the ultimate outcome. If that factual evidence is in any way likely to be unreliable then it follows axiomatically that the expert evidence dependent upon unreliable factual evidence may be similarly unreliable. This is also significant in the context of a case where it is alleged that there have already been false allegations made and false evidence given.

11. The parties’ respective proposals are a world apart, and the gap between the parties’ positions and how that is likely to impact on this young child is, if anything, becoming wider. The potential impact of these proceedings on the lives of both the parties and the child is significant.

12. I have, as I must, considered the question of the probative value of the evidence however I have some difficulty with this concept. In my view it is to be expected that there will be questions with respect to the probative value of evidence which would except for s 69ZT(1) be inadmissible. I have also had regard to the last of the matters which must be taken into account however the powers of the Court to adjourn the hearing or give a direction in relation to the evidence does not seem to be relevant in circumstances where unless s 69ZT(3) applies the evidence the rules of evidence referred to in s 69ZT(1) do not apply.

13. The importance of the evidence in this case, the history of the matter and in particular the allegations with respect to the mother’s previous affidavits and the significance of the outcome lead me to conclude that the circumstances in this case are “exceptional” and that the otherwise excluded provisions of the Evidence Act should apply. I propose to make and order pursuant to s 69ZT(3) that the rules of evidence should apply.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 28 February 2013.

Associate: 

Date:  28 February 2013