Zusak and Caldwell
[2012] FMCAfam 734
•26 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ZUSAK & CALDWELL | [2012] FMCAfam 734 |
| FAMILY LAW – Whether cross-examination of witnesses is to be permitted to determine a Rice & Asplund issue. |
| Family Law Rules 2004 r.15.59 |
| Rice & Asplund (1979) FLC 90-725 D & Y (1995) FLC 92-581 King & Finneran (2001) FLC 93-079 SPS & PLS [2008] FamCAFC 16 Neocleous (1993) FLC 92-377 |
| Applicant: | MR ZUSAK |
| Respondent: | MS CALDWELL |
| File Number: | SYC 3868 of 2007 |
| Judgment of: | Kemp FM |
| Hearing date: | Written submissions received in Chambers |
| Date of Last Submission: | 23 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2012 |
REPRESENTATION
| Applicant: | Self-represented |
| Respondent: | Self-represented |
| Independent Childrens Lawyer: | Clayhills Solicitors |
ORDERS
That the parties be permitted to orally examine Dr W with respect to his various reports and in particular his report released to the parties on 20 July 2011. Such examination to occur on a date and time to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Zusak & Caldwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3868 of 2007
| MR ZUSAK |
Applicant
And
| MS CALDWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings between the applicant father and the respondent mother, involving 2 children, [X] born [in] 2001 (now aged 10 years) and [Y] born [in] 2003 (now aged 8 years) (“the children”).
The discrete issue for determination by the Court in this judgment, is whether the father’s application to vary final parenting orders should be permitted to proceed given the mother has raised in opposition as a threshold issue the principle in Rice & Asplund and whether that issue can be determined by submissions, or if cross-examination of any witnesses would be permitted.
The father submits that his application cannot be determined by submissions alone, and that cross-examination of the following witnesses would be required:
a)Himself.
b)The mother.
c)Ms R.
d)Ms G.
e)Dr W.
The mother, in seeking, in essence, a summary dismissal of the father’s application, says that no cross-examination of witnesses is required or should be permitted.
The Independent Children’s Lawyer submits that if cross-examination is to be permitted it should be limited to Dr W only.
The Court proceeds to determine this issue on the papers, following the receipt of written submissions.
The Law
An application to vary final parenting orders, is determined by reference to the principles identified by the Full Court of the Family Court of Australia in the decision of Rice &Asplund (1979) FLC 90-725. The applicant bears an onus, on the balance of probabilities, to place before the Court sufficient evidence to establish that changed or new circumstances have arisen since the making of the earlier order. The Court must have regard to those circumstances in considering whether it would be satisfied that it would be in the interests of the child to vary that order.
The Court has a discretion as to how Rice & Asplund proceedings are to be conducted, including whether cross-examination should be permitted. As noted by the Full Court of the Family Court of Australia in D & Y (1995) FLC 92-581:
The judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing.
[…]
Judges of the Family Court have a wide discretion, subject to affording procedural fairness, as to the conduct of proceedings before them. It is clearly a matter within the discretion of the judge as to whether to permit cross-examination in an application of this nature.
[…]
There is, on occasion, too much of a tendency in this jurisdiction to expect that every issue should be the subject of extensive and often unnecessary cross-examination. This is very much the case in interlocutory matters and particularly in interim custody proceedings but it also extends to proceedings such as this one.
The Family Court of Australia in King & Finneran (2001) FLC 93-079 said the following in relation to the Court’s determination of the manner in which Rice & Asplund proceedings are to be conducted:
Clearly, in Rice v Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
The rule in Rice v Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F [now s.60CC] would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F [now s.60CC] factors, would have to be undertaken and completed.
A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice v Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett v Bennett [1991] FLC 90-126).
To apply the test in Rice v Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
Background Facts
The father was born [in] 1969 and is currently 43 years of age.
The mother was born [in] 1967 and is currently 44 years of age.
The parties commenced cohabitation in June 1998, married [in] 1999 and the children were born [in] 2001 and 2003 and are currently aged 10 and 8 years.
The parties separated on 28 February 2007.
The father commenced proceedings in this Court on 29 May 2007.
Following 9 days of hearing from 2008-2009, final parenting orders were made on 10 December 2009 (“the first set of proceedings”).
The father brought fresh proceedings by way of an Initiating Application filed on 26 February 2010 (“the second set of proceedings”) together with contravention proceedings, subsequently, filed on 16 March 2010. He subsequently filed an Amended Application in a Case on 17 October 2011, returnable on 14 November 2011. His Initiating Application sought to effectively reverse the final parenting orders made on 10 December 2009, so that he had sole parental responsibility in relation to education, that the children live with him primarily and that the children spend time with the mother pursuant to the same orders of 10 December 2009 by which he spent time with them, but her time was to be supervised by a supervisor approved by the father.
On 22 April 2010, the Court made orders in respect of the father’s payment of the Independent Children’s Lawyer’s costs in the sum of $6,794.25 and discharged the appointment of the Independent Children’s Lawyer in relation to the first set of proceedings.
On 27 April 2010, the Court made, by consent, inter alia, an interim order to the following effect:
(i) The parties attend counselling at Relationships Australia in [suburb omitted] to address:
(a) communication between the parties;
(b) the impact of ongoing conflict on the children;
(c) alleged breaches of orders made by the Court on 10 December 2009;
and adjourned the second set of proceedings to 27 July 2010. The Court noted that if there was no resolution, the mother wished to have a Rice & Asplund threshold issue determined prior to the matter proceeding further.
On 27 July 2010, the Court varied the order set out in paragraph 18 above to contemplate the office at Relationships Australia in [omitted], Sydney in lieu of [suburb omitted] and adjourned the second set of proceedings to 3 November 2010.
The mother filed an Amended Response on 27 September 2010 to the father’s first Initiating Application and sought orders not only that his proceedings be dismissed with costs but that there be a departure from an administrative assessment of the father’s child support obligations.
On 20 October 2010, the father filed an Application in a Case, returnable on 3 November 2010, seeking Orders as follows:
1. That if Orders are not made by consent, that this matter be listed before Magistrate Kemp on 3 November 2010.
2. That [the] Independent Childrens Lawyer, Alex Wearne or Anne Connor, be appointed by the Court to represent the interests of the children.
3. That Dr W be re-appointed to conduct and prepare a Family Report for the Court.
4. That all previous Applications and orders sought of both the Applicant and Respondent be suspended until a Family Report prepared by Dr W is made available to the Court and the parties to the proceedings.
5. That all costs of the Independent Childrens Lawyer and Dr W be shared equally between the Applicant and the Respondent.
6. In the event that these Orders are not made by consent between the parties to the proceedings, that indemnity costs in favour of the Applicant be granted and ordered.
The mother filed a Response to the Application in a Case on 1 November 2010, seeking Orders as follows:
1. That the Application in a Case filed by the applicant father on 2010 [sic] be dismissed.
2. That pending further Order … Order 35 of the Orders made on 10 December 2009 be suspended.
3. Such further or other Orders the Court deems fit.
Order 35 of the orders made on 10 December 2009 provided:
That each party shall ensure that [X] attends all consultations with Dr B as recommended by Dr B.
On 3 November 2010, the second set of proceedings were adjourned to 16 December 2010 and the Court again appointed an Independent Children’s Lawyer.
On 16 December 2010, the parties agreed to a mechanism to seek to reach agreement on the appointment of Dr W to prepare a report. The second set of proceedings were then adjourned to 21 December 2010.
On 21 December 2010, consent orders were made to the following effect:
(i) That Dr W be appointed as a single expert to prepare a report addressing the following issues only:
(a) The impact on [X] and [Y] of the attitudes expressed by each of their parents in relation to the other parent and to the relationship that each parent has with the other; and
(b) Each parent’s insight into the impact on the children of the attitudes expressed by them of the other parent to the children or in their presence; and
(c) What, if any, counselling or therapy is appropriate for the parents and or the children, or either of them to address any concerns the expert holds as a result of the parents attitudes and or insight as set out above; and
(d) In the event that counselling or therapy is recommended for either the parents or the children, or either one of them, then a recommendation as to who is an appropriate provider of such counselling or therapy.
(e) Any other issues Dr W deems fit and reasonable arising out of points (a) to (d) above.
(ii) The father pay for the costs of Dr W.
(iii) The proceedings be adjourned to 2 March 2011.
On 2 March 2011, the Court made further orders in respect of the father’s parenting application. The mother’s Amended Response (referred to in paragraph 20 above) provided for a child support departure application. That matter was listed for hearing on 13 and 14 September 2011. The parenting proceedings were adjourned to 12 May 2011 on basis that Dr W’s report would be available by that date.
On 15 March 2011, the father filed his Reply which simply sought a summary dismissal of the orders sought by the mother in her Amended Response.
On 12 May 2011, there was no appearance by any party and the proceedings were adjourned to 22 June 2011 with leave to vacate that date if Dr W’s report was not then available.
On 21 June 2011, by Chamber’s order the listing for 22 June 2011 was vacated as the report from Dr W was not then available and the matter was then adjourned until 22 July 2011.
Dr W’s report was released to the parties on 20 July 2011.
On 22 July 2011, the second set of proceedings were further adjourned to 18 August 2011 and the parties were directed to file and serve short affidavits in relation to their competing views as to the operation of certain of the orders made on 10 December 2009.
On 18 August 2011, the child support hearing dates of 13 and 14 September 2011 were vacated. The matter was then adjourned to 11 October 2011 and the Court made various orders in respect to the father spending time with the children on specified dates being 20 August, 3 September, 18 September and 15 October with the father’s alternating weekend time with the children pursuant to the orders made on 10 December 2009 to commence on Thursday, 25 August 2011 and to continue thereafter on the alternate weekends.
On 11 October 2011, the second set of proceedings were adjourned to 14 November 2011 as the Independent Children’s Lawyer had not appeared.
On 14 November 2011, the Court made orders for the father’s contravention proceedings to be listed for hearing on 16 March 2012. The Court also directed the parties to provide written submissions in relation to the question of whether the Rice v Asplund issue should be determined by submissions only or if cross-examination of any witnesses should be permitted. Those written submissions were to be filed by 22 December 2011 and the question for determination was to be reserved following the receipt of those submissions. Further, each party was directed to file and serve all affidavits upon which they intended to rely in relation to the question of the change of circumstances by 14 December 2011 and to notify the other party of all affidavits intended to be relied on in support of that question. Order 6 provided that the question for determination would be reserved following receipt of written submissions.
The written submissions were filed by the father on 13 December 2011, the mother on 23 December 2011 and the Independent Children’s Lawyer on 22 December 2011.
On 20 January 2012, the Court, by way of Chambers order, varied the order of 14 November 2011 relating to the date at which judgment would be reserved on the Rice & Asplund cross-examination issue. The order of 14 November 2011 had indicated that that issue would be reserved on receipt of written submissions. However, the order of
20 January 2012 varied that order, so that that issue would be reserved following determination of the Contravention Application listed for hearing on 16 March 2012, given the proximity of the contravention hearing date.
The father amended his Contravention Application on 15 February 2012 and further amended that Application on 13 April 2012. The contravention proceedings had initially been listed for a hearing on 16 March 2012. On 15 March 2012, by Chamber’s order, the hearing date of 16 March 2012 was vacated, and the matter was listed on 11 May 2012 for hearing.
The Contravention proceedings were heard on 11 May 2012 and judgment delivered on 25 May 2012. Charges 1-6 as set out in the applicant father’s further Amended Contravention Application filed on 13 April 2012 were dismissed and the matter was adjourned to 26 July 2012 at 9.30am for mention.
Accordingly, the question for determination before the Court today, the Rice & Asplund cross-examination issue, was reserved following delivery of judgment on the contravention issue on 25 May 2012. Therefore, the Court must determine whether it will permit the parties to cross-examine each other or any of their witnesses or Dr W to determine the Rice & Asplund issue.
Evidence
On 14 November 2011, the parties were directed to file submissions specifically relevant to the question of whether the Rice & Asplund point should be determined only on the papers, or if cross-examination of any witnesses should be permitted. The parties complied with that direction. The Court will have regard to submissions relevant to the Rice & Asplund issue itself, at the hearing on that point.
On 14 November 2011, the parties were also directed to file affidavits specific to the Rice & Asplund issue. The parties filed the following new affidavits since 14 November 2011, which the Court will have regard to when considering whether witnesses would need to be available for cross-examination on the Rice & Asplund issue:
a)The father filed two new affidavits, one sworn/affirmed on 12 December 2011 and the other sworn on 13 December 2011, both filed on 13 December 2011. He also sought to rely on the following earlier affidavits:
i)His affidavit sworn/affirmed and filed on 26 February 2010,
ii)His affidavit sworn/affirmed on 9 March 2010 and filed on 16 March 2010.
iii)His affidavit sworn/affirmed on 15 October 2010 and filed on 20 October 2010.
iv)His affidavit sworn/affirmed on 2 November 2010 and filed on 3 November 2010.
v)His affidavit sworn/affirmed on 15 December 2010 and affirmed on 16 December 2010.
vi)His affidavit sworn/affirmed and filed on 15 March 2011.
b)The mother filed four new affidavits:
i)The affidavit of Mr B sworn/affirmed 8 June December 2011 and filed 13 December 2011.
ii)Her affidavit sworn/affirmed 8 December 2011 and filed 13 December 2011.
iii)Her affidavit affirmed and filed 14 March 2012.
iv)Her affidavit affirmed and filed 1 May 2012.
The mother does not appear to have identified in her submissions, that she would be seeking to rely on those affidavits or further affidavits for the purpose of the issue before the Court today or the Rice & Asplund issue itself.
While the father seeks to cross-examine Ms R and Ms G on the Rice & Asplund issue, neither of those persons have had filed affidavits or proofs of evidence on their behalf. The father sought to cross-examine Ms R on his contravention application, by way of subpoena to attend Court, however Ms R did not attend Court due to asserted health issues. The father did cross-examine Ms G on his contravention application.
The father also seeks to cross-examine Dr W. Dr W has prepared three reports. He prepared two reports in the first set of proceedings and one report which was released to the parties on 20 July 2011, in the second set of proceedings.
The Court, as stated, proceeds to determine this issue on the papers, being the parties’ submissions and the affidavits filed and identified above.
The father’s affidavit material is voluminous and to an extent repetitive. Essentially, the father asserts that the mother has denigrated him and continues to do so in the presence of the children, using inappropriate language (such as calling him a “fucking loser”) and is angry in the presence of the children causing them emotional distress and to be fearful of being subjected to physical harm.
The mother asserts that the father so structured the family’s financial affairs that on separation there was no property available for distribution and no financial support provided to her. She says that she was forced into a refuge.
The father asserts that the mother has involved the children and, in particular [X], by saying that the father spends more money on [X]’s dog than on the children, that the father put the mother in a refuge and that the mother hates the father’s new partner, Ms L.
Ms B, a child psychologist, confirmed the ongoing parental hostilities were exposing the children and, in particular [X], to parental anger which would have potential consequences on [X]’s psychological functioning.
The mother lodged a complaint to the Health Care Complaints Commission (“HCCC”) against Ms B on 2 November 2010 and subsequently Ms B on 13 December 2010 indicated that she wished to withdraw from providing any counselling and recommended that [X] and both parents seek ongoing treatment from a clinical psychologist.
The father further asserted that [X] reported that the mother screams and swears at her (almost every second night), shows her Court papers, talks about Court, called her and [Y] “imbosoles” meaning “imbeciles”, tells her that she is writing lies and pushed her over and involved her in sending SMS messages to a person by the name of
Ms F saying “I hate U”.
The mother says in her complaint to the HCCC that her relationship with [X] had been great until this year [2010], that [X] had become moody, traumatised, aggressive and defiant and that [X] threatened to tell Dr B and that Dr B and the father would tell the police on her and get her into trouble and that the father had forced [X] to write down negative things about her and had then arranged for Dr B to see those writings.
The father says that the children feel very settled with him and [X] confides in him more than ever. He acknowledged the children loved the mother and that [X] had been invited to participate in an [omitted] and had been invited to be involved in the [omitted] in 2012.
The father confirms that he has a partner, Ms L, whose former husband is Mr L and they have children.
The mother has a relationship with Mr B (“Mr B”). The father refers to Mr B offering in a text message to pick up [X]’s [omitted] but the father says he did not respond because he did not trust Mr B.
The father further asserts that the mother slashed a sleeping bag and scratched “a loser” onto the LCD screen of a camera in [X]’s possession.
The mother denies in her affidavits all the alleged incidents of denigration. She says that she has moved on and has now been in a relationship with Mr B for some 2 years. She says that Mr B’s ex-wife, Ms R, made a statement to the police and that she was bitter about her marriage break-up and blames the mother. The mother admitted to emailing and texting the father and referring to him as a “bastard” and a “loser” but said that she did so out of frustration and in the face of the father’s constant litigation and not in the presence of the children.
The evidence of Mr B supports the mother’s assertions.
To permit further cross-examination of the parties and witnesses is, in effect, to embark upon a full hearing prior to the determination of the Rice & Asplund point. While a Rice & Asplund issue can be heard at the same time as a full hearing, to a large extent the advantages to the parties and, in particular, for the children is for it to be dealt with so as to avoid further litigation, parental dispute and uncertainty which all may negatively impact on the best interests of the children.
The rule in Rice & Asplund may not impede the hearing of an application for a small alternation in existing parenting orders where that may require only a short and narrow enquiry. See Warnick J in SPS & PLS [2008] FamCAFC 16.
The rule, however, is there to properly prevent a hearing in respect of more far reaching changes which would require a much larger enquiry. In those circumstances, the Court must consider any change or fresh circumstances to be satisfied that there is a real necessity to re-litigate the parenting issue in dispute. The Court accepts that it need not be satisfied that those fresh or changed circumstances would result in a change in the orders but that if those were to be taken into account then there is a real likelihood that a change may follow. See King v Finneran (2001) FLC 93-079.
The Court accepts the submissions of the Independent Children’s Lawyer that the father’s affidavits raise allegations in relation to the mother’s care of the children and her alleged denigration of the father and other related people which were issues canvassed in the first set of proceedings.
The Independent Children’s Lawyer further submits, and the Court accepts, that any cross-examination of the parties in relation to the father’s issues would be lengthy and would, in effect, amount to a re-hearing of the matter.
The Independent Children’s Lawyer submits that if the Court were to permit cross-examination on the Rice & Asplund issue, it should be limited to Dr W.
The mother seeks the summary dismissal of the father’s application on the basis that the threshold test under Rice & Asplund has not been met.
The mother says that the father commenced these proceedings as he had never accepted the final orders made in the first set of proceedings, but without any evidence of a relevant change in circumstances.
The mother asserts that the father’s only basis for seeking a reversal of the current final parenting orders relates to his complaint to the police in February 2010 asserting that she had pulled an earring from [X]’s ear and attended with the [omitted] Police. No action was taken by the police. The mother says that on the following day the father reported to the police at [suburb omitted] that she had, on the previous evening, threatened to kill him and his partner, Ms L. The mother denies all of the father’s assertions and complaints.
The police took out an AVO application against the mother returnable in the Local Court of New South Wales at Waverley on 11 March 2010. The Local Court dismissed the application on that day after the father had left the Court to pick the children up from school.
The mother’s departure application in respect of child support relates to an assessment under which she is paying the father $6.00 per week for child support.
The mother says that the Child Support Agency has now adjusted the father’s taxable income for the period 10 May 2013 to 9 May 2014 to the figure of $90,181.00.
The mother says that, in all of the circumstances, there is nothing in
Dr W’s report to ground a change in circumstances.
Conclusion
For the reasons specified below, the Court is of the view that it will permit examination of Dr W by the parties but no further cross-examination.
The Court is mindful that the process of cross-examination is associated with procedural fairness. In Neocleous (1993) FLC 92-377 Lindenmayer J. described: “The right of one party to cross-examine the other, or his or her witnesses, in relation to disputed issues of relevant fact” as a fundamental right in adversarial proceedings.
However, in light of the rationale for the Rice & Asplund rule, namely to prevent overlitigation of matters, whether cross-examination is permitted is a matter of judicial discretion.
The amount of evidence permitted by the Court in considering a Rice & Asplund, issue is closely connected with whether the Court wishes to consider the question of changed circumstances as a threshold issue or following a full hearing. The exercise of the Court’s discretion in this regard, might be visualised as subsisting along a conceptual continuum:
a)At the commencement of this conceptual continuum, the question of changed circumstances would be dealt with as a threshold issue. The matter would proceed on the papers only, in the manner of summary dismissal, and accordingly no cross-examination would be permitted. The mother essentially submits that the matter should be dealt with in this manner.
b)At the other end of the conceptual continuum, the question of changed circumstances would be dealt with following a full hearing, where cross-examination of parties and witnesses would be permitted. The father’s proposal that five witnesses be made available for cross-examination, may be characterised as towards this end of the continuum.
c)In the circumstances of this case, for the reasons set out below, the Court adopts a position between those as asserted by the mother and the father. The Court is of the view that the question of any changed circumstances will proceed as a threshold issue, with cross-examination permitted, but only in respect of Dr W. The Court is not of the view that embarking on a full hearing would serve the interests of justice or the welfare of the children in this case.
As noted by the Family Court of Australia in King & Finneran (2001) FLC 93-079:
“in Rice v Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test”.
In this case the following matters are relevant to the Court’s determination:
a)The rationale for the existence of the Rice & Asplund test, is to prevent parenting matters from being over-litigated. That rationale is particularly potent here, given that the parties have been litigating for more than 5 years; that the final hearing required some 9 days of hearing time and that there has been a contravention hearing which addressed one of the father’s assertions as to changed circumstances (being the contravention itself).
b)Both the father and the mother are self-represented:
i)To have them personally cross-examine each other would potentially open up wounds, which would not be conducive to ongoing parenting relationships in the best interests of the children.
ii)Their cross-examination if permitted to be at large is likely to focus on matters not strictly relevant for the Court’s determination which would not only bring them into further conflict as identified above, but would also negatively impact on the length of the time available to determine the discrete issue before the Court.
c)The potential utility of the evidence the subject of any proposed cross-examination:
i)The father and the Independent Children’s Lawyer are in agreement that the expert report writer, Dr W, be cross-examined. The mother opposes any cross-examination. Given the objective unbiased role that the expert report writer is required to perform, cross-examination of the expert may be of great assistance to the Court. In assisting the Court, the expert has positive obligations under the Family Law Rules2004 r.15.59(3)(a) to (f), including:
1. to give an objective unbiased opinion that is independent and impartial;
2. to consider all material facts including those that may detract from the opinion.
3. To advise the court if issues fall outside expertise or if the report has been compiled based on insufficient or inaccurate material or research.
ii)The potential utility of Dr W’s evidence was implicitly acknowledged by all parties, in that they consented to the preparation of his updated report. The Court gives weight to this.
iii)In respect of the father’s other proposed witnesses – one gave evidence on the contravention hearing. The other has not provided an affidavit or proof of evidence. This weighs against the potential utility for any such evidence to be tested by way of cross-examination.
d)The father’s Contravention Application and the Rice & Asplund issue are interconnected. The husband notes in his submissions that:
“A Contravention Hearing is set down before your Honour on 16 March 2012 … This is a serious Contravention that gives rise to the question of whether the Primary Parenting Orders of 10 December 2009, should be changed as a result of this serious contravention …”.
It was because of this that the Contravention Application was heard before the Rice & Asplund question was considered.
Given this interconnectivity it is not surprising that the father seeks to call the same witnesses again, specifically, himself, the mother Ms R and Ms G, however, the father has already given an opportunity to adduce evidence and test by cross-examination witnesses at the Contravention hearing and that evidence can be placed before the Court at the Rice & Asplund issue by way tendering any transcript. In view of this and the rationale for the Rice & Asplund rule, the Court is of the view that it would not be appropriate to subject the parties and the identified witnesses to further cross-examination.
Accordingly, the Court will direct that the parties be permitted to orally examine Dr W with respect to his various reports but in particular, with respect to his report released to the parties on 20 July 2011.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Kemp FM
Date: 26 July 2012
0