Freedom Law

Cross-examination of the Father by Counsel for the Independent Children’s Lawyer

Cross-Examination of the Father by Counsel for the Independent Children’s Lawyer

  1. The father said his mother was prepared to come to court and she supported his case. He conceded a longstanding police history from 1994 to 2014. The last occasion was 7 November 2014 when all charges were dropped except breach of the Intervention Order for which he received a $750 fine. This was in relation to Ms N.
  2. The cross-examination traversed the various LEAP records constituting ICL1. He said he is not now facing any other charges but there is an Intervention Order concerning Ms N until 2018. He conceded numerous complaints had been made by former partners of his including Ms R, Ms J, Ms B, Ms N, Ms A Finn and Ms N. He said they were all lying. “Of course they are.” He denied breaking Ms A Finn’s arm. He said it happened but he did not break her arm.
  3. He did not recall pushing Ms A Finn into a brick wall in 2004 and said he could not recall punching her numerous times. He did not recall knocking out her front teeth. When it was put to him that on 29 November 2004 a warrant to arrest him was executed, he said this would not have happened if it had not been for Ms A Finn.
  4. When it was put to him that he had punched Ms B in 2010 three times with a clenched fist he said he did not hit her. She was jealous because he had rejected her. He said after she hit him he left. He said, “I know what they’re like.”
  5. The father was asked if he was prepared to accept supervision at a contact centre. He replied that he would do whatever it takes but did not believe supervision was necessary.
  6. He was then cross-examined about the (omitted) park incident in April 2016. The grandmother was to supervise on that day. She was not there when he took X to the farm to use an air rifle. Mr G was there.
  7. The father says he does not want the grandmother there and sees the need to prove this to the courts.
  8. He was cross-examined about his relationship with Ms K which lasted for five and a half years. Her child, (omitted), is not the father’s child. When cross-examined about records dated 21 July 2013 he said he kicked her out several times. He waited for police to turn up. She then called police several times. He had made a lot of bad mistakes. If she had been injured he would have been charged. He asked, rhetorically (a number of his answers were rhetorical questions), “If I was so bad why did she come back?” He said the neighbours called the police. He did not accept that there was a pattern where he returned to get possessions and arguments occurred. It did not occur that he put an arm around her neck. He denied, in effect, all the assaults alleged by the various complainants against him.
  9. When his court record from 1998 to 2014 was put to him that the majority of offences were for violence or dishonesty, with the majority being for violence, he took issue although it emerged that he thought theft was not an offence of dishonesty. He accepted that there were serious counts of assault and said that he was asking the court to believe that he had changed. He takes responsibility for himself. He said people had been paid to bash him and he stuck up for himself.
  10. The father was cross-examined about his alcohol consumption. He said he drinks less than a slab of beer a week. He takes 5 milligrams of Valium per night and 100 milligrams of Seroquel. That is an antipsychotic. He also takes cannabis daily. He needs it. He uses a bong and consumes about three grams a week. He consumes every night but not every daytime. The doctor gave him Seroquel to help him sleep. Before that he took other drugs. He takes them with alcohol and he goes to sleep. He takes the same amount of medication every night and it puts him to sleep in five minutes. He has undertaken drug and alcohol counselling in the past and is now enrolled in PenDAP.
  11. When taken to the DHHS report from 2016, he conceded that Y was removed at birth. There has been extensive departmental involvement over the years. DHHS paid for two of his visits to Queensland. He enrolled in PenDAP in 2007 because someone told him to do it. When asked why he had not undertaken alcohol counselling before 2017 he replied this was because his lawyer told him to enrol. He wants to make changes. He wants help with marijuana. It is not healthy. He does not want to keep smoking. Three grams a week is not overboard. He was told to go by his lawyer.
  12. When taken to the report from Ms K, he conceded that the blackouts referred to in her report were due to alcohol. He has seen Ms K in June 2016 till June 2017 and has seen her since then. He has bulging discs. When it was put to him that he had difficulty controlling his temper he said all his blackouts were caused by alcohol. When it was put to him that he needs marijuana to be normal he replied that that was right. He is going to apply for medicinal marijuana in the near future. Marijuana is better than other medication.
  13. When it was put to him that he had not complied with the Independent Children’s Lawyer’s request for drug screens he said he had done some. He is self-conscious and is unable to urinate.
  14. The father sometimes buys marijuana. He does not grow it because you do not get the same potency (he has obviously clearly tried or is otherwise conversant with such practices). He buys from a dealer. He first said that he mows his lawns in exchange but then went on to say that $60 is two weeks’ worth of marijuana.
  15. The father had been at the (omitted) Hospital on 3 June 2017 with a rib problem. He was put on heavy painkillers as a result of (hobby omitted) injuries and broken ribs. He took Endone for six weeks. When it was put to him that his drug screen showed amphetamines and not opiates he said he was not taking amphetamines. He was in hospital for four or five days and had lots of morphine because he was in agony. He had $970 in cash on him in hospital and had been paid the day before. He said he could produce the invoice and bank account to prove this (they were not subsequently produced). He only got one job done before his accident.
  16. When cross-examined about records from the medical centre at (omitted) it was put to him he abused a Dr G because Dr G refused to give him scripts for medicines. The father said he might have said something rude. He was upset because Dr G would not look at his file.
  17. The father said he consumes three grams per week and had told the psychologist this. He thinks of suicide every day. It would be a relief from pain. (The father’s evidence about these matters was clearly distressing to him and he was in tears.)
  18. The father pays Ms G $85 per session and she is enormously helpful.
  19. B is not living with him but was. His date of birth was (omitted) 2001. The father pleaded guilty to assault of B when he was two years old. He was, in fact, not guilty. He was initially subjected to a custodial sentence but appealed and the sentence was hardly suspended. He has never been in jail. He said the DHHS records were all inaccurate. He had a bad lawyer and it was bad timing.
  20. The father was then cross-examined about the (omitted) park incident. He said this was not close time with X. It did not provide a chance to bond. It was not long since he had seen X. He was explaining to the grandmother that travel makes him anxious. He is not comfortable in a public area. He was not angry during the conversation. When it was put to him that he had raised his voice and clenched his fists, she said this was not right. He was not angry. There was no argument. He handed his lawyer’s card to the grandmother and she took it.
  21. When asked why X did not wish to see him when interviewed by Ms M, he said this was so out of character it was amazing. X was being told things.
  22. When asked if he accepted the diagnosis of foetal alcohol syndrome, ADD and ADHD, the father said he was not doubting these diagnoses but they had only been done recently.
  23. The father said he had a good relationship with Y and saw him all the time. Mr G was jealous. Y stopped seeing him when the first respondent saw him. He did not know who is to blame. He had not done anything. Ms N had caused all this.
  24. The father was cross-examined about Ms T. He was not in a relationship with her. She is the registered carer of B and they met at the Magistrate’s Court. He sees B regularly. B is disturbed and has issues. He sees him a couple of times per week.
  25. His own mother runs a (business omitted) from home. She is 72 and lives in (omitted) also. Ms A Finn had been with him from April 2017 until five weeks ago. He does not now have a partner. Ms A Finn was okay when she saw Ms M but has made no attempt to see X. X always said, “I love you, dad.” Some meetings with X did not occur. Once it was raining. On other occasions the grandmother had taken off immediately if he was delayed. He saw Ms A Finn last night and days ago. He had told her she did not need to come to court. She could come to court but he would rather not have her here. He conceded that the (omitted) park visit in April had not gone well.
  26. In re-examination the father said he got a lot out support services. He had no idea he had anxiety until he was told. He deals with anger so much better and handles things so much better now.

Cross-examination of Father by Counsel for the Mother

Cross-examination of Father by Counsel for the Mother

  1. The father indicated that the mother had been drinking whilst she was pregnant. He was asked if he was aware that X suffered from ODD and ADHD and separation anxiety and responded that he had not seen any evidence. He would like to look into it. He was not aware that he could dispute these diagnoses.
  2. When asked if he was aware of extra-curricular assistance given to X he said he had never seen any. He said the GPs were not interested in how X was going at school. He was told about incidents involving X’s school but not told the details. He had conceded there was a very strong relationship between X and the first respondent. He had nonetheless asserted that there were a lot of weekends when X was palmed off to friends. He was in crèche when he was very young for up to 12 hours a day. (Some of these assertions were not in his affidavits.)
  3. When asked if it was important there was consistency in X’s life he responded with questions. He asked if there had been any improvements at school. He said he did not know whether X had improved or not. He said he would not be surprised if X had improved since the grandfather died. He did not know if X has foetal alcohol syndrome but wanted to know.
  4. The father said that the grandfather had put a contract on his life for four years. He contacted the police but no charges were made. The grandfather was too political and well-connected. He had conceded that the grandparents were always accommodating if he went to Queensland. He said the grandfather gave Ms A Finn illicit drugs.
  5. The father said he used cannabis daily and conceded he had a considerable police history. When it was put to him that he had fled to Queensland after a complaint of abuse he said he remembered this. It was about B. He did not remember what the allegation was. He agreed he had an extensive criminal history going back to the 1900s but it was not almost every year.
  6. The father conceded that there was a family violence report in 1996 from Ms R. He said no charges arose.
  7. The father admitted that there was a history of drug and alcohol abuse when he was living with Ms A Finn. He still drinks but not daily, perhaps two to three times per week. He drinks mid-strength beer and might have between two and a dozen. He has never committed family violence in front of any of his children. He has not seen E for six years because that is the way E’s mother wants it. There were two round table agreements made which E’s mother broke. The matter did not come to court.
  8. He has not seen X since April 2016. When it was put to him that he had only seen X 10 times he said it cost him $2500 each time. He did not see X for a period of four years because he was terribly depressed. When he was working he would go up for 10 days at a time, four times per year, to Queensland. He wants to be closer to X.
  9. When cross-examined about his failure to attend because it was raining he said that with his issues three hours on the train would have been too much. He said when he sees X they click. He does not know why X does not want to see him but said X was told things. X is always comfortable with him.
  10. The father said he had made a lot of bad decisions. He is now better and working on his problems. Ms A Finn is trying to clear her act up. The father said he had mental health issues and Ms A Finn was trying to resolve her problems. He got rid of Ms A Finn five weeks ago because she was back on drugs and not working. The father said words to the effect, “Marijuana is acceptable to me and for me.” He wants a chance to be in X’s life.
  11. B has a criminal record which occurred after he left the father. The first respondent has sought to alienate X from him. “She is doing this for financial gain.” He said, “Why has she been doing this then”, when questioned further.
  12. He blames Ms N for telling the first respondent things. Ms N made up allegations of family violence. Police have the records.
  13. The father has not done all the drug screens requested. Some showed cannabis and one showed amphetamine but this was because of medicine. When he went to the doctor in March 2017 he wanted Valium and Seroquel. He denied being loud and abusive to the treating doctor and said the doctor was rude to him.
  14. He used to deal drugs with Mr G (the maternal grandfather). He said that Mr G made him sell Mr G’s drugs to finance (omitted) political campaign.
  15. The father has undertaken a course with the (omitted) in (omitted) and is starting a drug and alcohol course next week. He had done such courses several times before and did not find them helpful. He is better on cannabis. He has stuck to five milligrams of Valium per day for the last year and also takes Seroquel. He has more control of himself now than ever. He is putting money away. He has been renting a house for a couple of years now and is no risk to his son. He always takes his medication and is only going by his lawyer’s recommendations. He said X’s attitude was all because of what he has been told.

Family Contact Service evidence assists father gaining more time with children

FAMILY CONTACT SERVICE EVIDENCE ASSISTS FATHER IN GAINING MORE TIME WITH CHILDREN

REASONS FOR JUDGMENT

(delivered ex tempore)

  1. Orders were made by consent on 21 September 2017, which include, by order 6, that the father spend each Wednesday from 4:00pm to 6:00pm and each Saturday from 8:00am to 10:00am in supervised time with the children at a Family Contact Service for the first six occasions that he spends that time with them.
  2. Order 7(c) of those orders provided that the father obtain and meet the costs of a report from the professional supervisor at the Family Contact Service at the conclusion of the six supervised occasions of contact and that provided that the report does not raise any significant concerns about the time spent, the requirement for supervision cease.
  3. The Court has been provided with a report from the Family Contact Service, Ms J, and that gives a detailed account of the interaction between the father and the children on Saturday 30 September, Saturday 7 October, Saturday 13 October, Wednesday 18 October and Saturday 21 October 2017.
  4. Without quoting from it, on my reading of that account from the Family Contact Service, the time that has been spent between the father and the children has gone extremely well. There is a sense of joyousness about the interaction, the children seeming relaxed and comfortable with the father and the father is behaving appropriately with the children. There is nothing in that report indicating that there has been any behaviour which would suggest the children have not enjoyed their time with their father.
  5. This is contrary to what is said by the mother in paragraph [21] of her affidavit affirmed 1 November 2017, wherein she states:
    The children have been upset and difficult to settle after their time with the applicant. They are having real difficulty with the time with their father at present.
  6. Having regard to the fact that Ms J is an experienced supervisor, she has provided a detailed and comprehensive account of the time that the children have spent with the father and that she is non-partisan, I accept her account of how the children spend time with the father. There is no evidence that the children are having real difficulty with their time with the father at present. Notwithstanding this, the mother has not allowed the father to have time on, I understand, two occasions since the supervised time finished.
  7. The issue is what occurs between now and the time for obtaining a family report. Orders have been made for the parties to attend an appointment for that purpose on 31 January 2018.
  8. In my view, there should be some variation of the orders that were made on 21 September 2017. There have been competing proposals in relation to the time that the father spends with the children:
    1. the father proposed that the Saturday time for the next four weeks be extended from 10:00am to 6:00pm and the Wednesday arrangement remain in place. After four weeks, he proposed that the time be extended from Friday evening to Sunday evening each alternative weekend and the Wednesday arrangements remain in place.
    2. the mother proposed increasing the Saturday time by two hours so instead of time being from 8:00am to 10:00am it run from 8:00am to 12:00pm and the Wednesday remain the same.
  9. The orders that I have made are in effect a compromise between the competing positions and provide an opportunity for the father to spend meaningful time with his children but on a more limited basis than that which he proposed. Given that there are clearly ongoing tensions between the parents regarding arrangements for the children, in my view the graduated approach which is reflected in the orders is one that is likely to lead to less tension. In view of the extremely positive account of the time that the father spent with the children in a supervised setting, in my view the children will benefit from spending a longer period of time with their father.
  10. The mother filed an affidavit sworn 1 November 2017 which detailed what she regarded as breaches of an intervention order which occurred in the period up to 9 September 2017. These include allegations of telephone calls made by the father to the mother and instances where the mother saw the father drive past and then pause and look into the window of the business operated by the mother in (omitted) Street.
  11. The affidavit also sets out a translated Facebook message from the father’s new partner to the mother which was highly derogatory of the mother (particularly her appearance). That text message was sent in May 2017. The message was plainly inappropriate and was accepted as such by counsel for the father and I expect that no further similar communications will be made by the father’s new partner. Text messages between the mother and the father which were tendered to the court indicate that they both have a poor approach to communicating with one another.
  12. The allegations made by the mother in her most recent affidavit relate to events which are alleged to have occurred prior to the orders made on 21 September 2017. There is no evidence of any allegation of further incidents since those orders were made. I do not believe the allegations of family violence are such to affect the father’s capacity to parent or to put the children at risk whilst in his care.
  13. The mother made allegations of drug use in her affidavit, in particular marijuana use. The allegations are vague and I note that the mother has not sought orders that the father submit to drug tests. The evidence does not establish on an interim basis that the children are at risk because of the father’s alleged drug use.
  14. In my view, these orders are appropriate and are in the best interests of the children. They were formulated by the Court following discussion with the party’s representatives in open Court. I have made these orders having regard to the principles stated in Goode v Goode [2006] FamCAFC 1346(2006) 36 Fam LR 422 at [82].

How are disputed and untested allegations of family violence to be treated at interim hearings?

How are disputed and untested allegations of family violence to be treated at interim hearings?

In the Full Court’s recent decision in Saleh & Saleh [2016] FamCAFC 100, the Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The Court made a number of important points, including:

  1. Section 60CC requires a Court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. This is a requirement that does not really depend on there being findings of family violence, but focuses on risk, which can exist independently of disputed allegations;
  2. Section 61DA is in mandatory terms: “the Court must apply a presumption” that is in the best interests of a child for there to be an order for equal shared parental responsibility. Section 61DA(3) states that the presumption still applies “unless the Court considers that it would not be appropriate in the circumstances” for the presumption to be applied in making an interim order. Section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. It requires a cautious approach especially in the context of s.60CG.
  1. Paragraph [68] in Goode, where the Full Court warns against inappropriately being drawn into matters of contentious fact, does not mean that merely because facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts: Eaby & Speelman(2015) FLC 93-654.
  1. An acknowledgement that at an interim hearing, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible to simply ignore an assertion because its accuracy has been put in issue: SS & AH [2010] FamCAFC 13. This applies especially to family violence allegations.
  2. There is no requirement for corroboration or objective support for an allegation of family violence. Family violence often takes place in private, in circumstances where no corroboration is available.
  3. A reference to the civil standard of proof is entirely inapt in the context of disputed family violence allegations in interim hearings.
  4. It is unwise to simply ignore family violence allegations and find that the presumption of equal shared parental responsibility applies.

Criminal history of violence, drugs and incarceration must be disclosed

Criminal history of violence, drugs and incarceration must be disclosed

  1. The Father sought interim Orders, including a location order, a recovery order, equal shared parental responsibility, that the children live with the Father, and spend time with their mother each alternate weekend from after school Friday to before school on Monday, each Wednesday from after school until 7:00pm, half of each school holiday period, and on special occasions. A watch list order was also sought.
  2. What should have been clear from the orders sought by the Father is that whatever concerns he raised in his Affidavit (which will be considered shortly), those concerns did not warrant any particular restrictions or conditions on the Mother’s time. Indeed, the Father proposed a substantial and significant time order.
  3. The Father caused to be filed a Notice of Risk. In that Notice he alleges that the children are at risk of being abused by their mother. The narrative he gives in his Notice of Risk refers to the Mother’s physical discipline of X and his concerns about the Mother’s mental health. He further alleges that there has been family violence perpetrated by the Mother against both the Father and X, by way of verbal abuse. Moreover, he inferentially casts doubt upon the Mother’s mental health by referring to an incident on 19 January 2017 when the Mother allegedly attempted to jump out of a moving car.
  4. Despite the serious concerns raised in the Notice of Risk, the actual parenting Orders that he proposed at the time, indeed, continues to propose to this Court, suggests no restraint on the Mother’s behaviour as directed towards X and contains no proposal about the Mother seeking assistance about her alleged mental health condition. Having, no doubt, gained the attention of the person reading the Notice of Risk by alleging family violence and mental health issues, the Father also raised concerns about not knowing where the Mother and the children were, though he does not go on to raise concerns in the Notice of Risk about the children being removed from Australia.
  5. There is another important allegation raised in the Notice of Risk, and that is that the Mother had falsely made an allegation against the Father of family violence on 26 January 2016. This will be considered in greater detail below.
  1. The difficulty for the Father, however, is that this particular evidence, on which he relied in order to gain the recovery order, was plainly misleading in what it does not tell the Court. Moreover, the matters about to be discussed were plainly known to the Father.
  2. The Mother’s Solicitor caused to be produced to the Court on short notice documents produced on subpoena by New South Wales Police. The first category of documents in this regard is the Father’s criminal history. The Father had a significant criminal history between 1978 and 2003. After 2003, however, the only charges recorded relate to an alleged violent incident with the Mother in these proceedings in 2016, which were dismissed. This will be discussed below.
  1. In any event, it is plainly the case that the Father, who must have known about these events and the charges and convictions against him, not only failed to disclose this information, but presented an even more disturbing half-truth before the judicial officer who was called on to make an urgent and ex parte decision about his children.
  2. Let it be very clear – it is the opinion of this Court that any parent who has been violent to a former partner in the past, who has been convicted of the same, and who does not spend time or communicate with children from a previous relationship for reasons that include that violence, must put that material before the Court in all circumstances, let alone when ex parte Orders are sought.

Undue influence and binding financial agreements

Undue influence and binding financial agreements 

On 8 November 2017, the High Court unanimously allowed an appeal from the Full Court of the Family Court of Australia. The High Court held that two substantially identical financial agreements, a pre-nuptial agreement and a post-nuptial agreement, made under Pt VIIIA of the Family Law Act 1975 (Cth) should be set aside. Mr Kennedy and Ms Thorne (both pseudonyms) met online in 2006. Ms Thorne, an Eastern European woman then aged 36, was living overseas. She had no substantial assets. Mr Kennedy, then aged 67 and a divorcee with three adult children, was an Australian property developer with assets worth over $18 million. Shortly after they met online, Mr Kennedy told Ms Thorne that, if they married, “you will have to sign paper. My money is for my children”. Seven months after they met, Ms Thorne moved to Australia to live with Mr Kennedy with the intention of getting married. About 11 days before their wedding, Mr Kennedy told Ms Thorne that they were going to see solicitors about signing an agreement. He told her that if she did not sign it then the wedding would not go ahead. An independent solicitor advised Ms Thorne that the agreement was drawn solely to protect Mr Kennedy’s interests and that she should not sign it. Ms Thorne understood the advice to be that the agreement was the worst agreement that the solicitor had ever seen. She relied on Mr Kennedy for all things and believed that she had no choice but to enter the agreement. On 26 September 2007, four days before their wedding, Ms Thorne and Mr Kennedy signed the agreement. The agreement contained a provision that, within 30 days of signing, another agreement would be entered into in similar terms. In November 2007, the foreshadowed second agreement was signed. The couple separated in August 2011. In April 2012, Ms Thorne commenced proceedings in the Federal Circuit Court of Australia seeking orders setting aside both agreements, an adjustment of property order and a lump sum spousal maintenance order. One of the issues before the primary judge was whether the agreements were voidable for duress, undue influence, or unconscionable conduct. The primary judge set aside both agreements for “duress”. Mr Kennedy’s representatives appealed to the Full Court of the Family Court, which allowed the appeal. The Full Court concluded that the agreements should not be set aside because of duress, undue influence, or unconscionable conduct. By grant of special leave, Ms Thorne appealed to the High Court. The High Court unanimously allowed the appeal on the basis that the agreements should be set aside for unconscionable conduct and that the primary judge’s reasons were not inadequate. A majority of the Court also held that the agreements should be set aside for undue influence. The majority considered that although the primary judge described her reasons for setting aside the agreements as being based upon “duress”, the better characterisation of her findings was that the agreements were set aside for undue influence. The primary judge’s conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could also have been set aside for duress. Ms Thorne’s application for property adjustment and lump sum maintenance orders remains to be determined by the Federal Circuit Court.

When is expert opinion not expert or not admissible in parenting cases?

When is expert opinion not expert or not admissible in parenting cases?

  1. The mother exhibited a letter dated 28 March 2017 addressed by Ms L to the parties’ respective lawyers. Regrettably, the mother’s affidavit did not disclose that the parties’ respective lawyers had addressed a joint letter of instructions dated 28 February 2017 to Ms L. The letter of instructions was tendered in evidence. The letter of instructions identified that the parties sought Ms L’s input and advice with respect to their current dispute in relation to the parenting arrangements for their child. The letter of instructions identified an agreed history of the matter and provided the parties respective proposals for ongoing spend time with the father. It appears from this letter that appointments were made for the parties to attend Ms L on various dates in early March 2017.
  1. While objection was made to Ms L’s letter being received in evidence. I took the view that it was necessary, in the circumstances, to rule on the objection in order that the application for interim relief could proceed: see Dasreef Pty Ltd v Hawchar [2011] HCA 21(2011) 243 CLR 588 (19) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
  2. By force of para 69ZT(1)(c) of the Family Law Act 1975 (Cth), inter alia Part 3.3 (Opinion) of the Evidence Act1995 (Cth) does not apply to child-related proceedings. Further, by sub-s 69ZT(2), the court is authorised to give such weight (if any) as it thinks fit to evidence admitted as consequence of a provision of the Evidence Act 1995 (Cth) not applying because of sub-s 69ZT(1). In addition, the court is authorised by sub-s 609ZT(3) to apply a prescribed division of the Evidence Act 1995 (Cth) where the circumstances may require.
  3. Ms Lane of counsel for the applicant father objected on two bases to Ms L’s letter being tendered in evidence.
  4. First, it was said that Ms L’s letter did not satisfy the principles stated in a Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305(2001) 52 NSWLR 705 (Makita). In that appeal, Heydon JA (as he then was) analysed in detail the conditions which controlled whether an opinion of an expert could be tendered in evidence. His Honour observed, amongst other things, that in assessing an expert’s opinion the court was entitled to ask whether it was intelligible, convincing and tested. In this case, it is unnecessary to examine the Makita principles in further detail.
  5. It is important to see the objection to the contents of Ms L’s letter in context. Ordinarily, opinion evidence may only be adduced by an expert: section 79(1) Evidence Act 1995 (Cth).
  6. Depending upon the view taken of the matter, Ms Lane’s first objection either derived, or lost, its force from the express caveat made by Ms L herself. From the outset the author was concerned to emphasise that her letter was not to be interpreted as a forensic family report. Ms L was quite entitled to place that caveat over the contents of her letter. In those circumstances, Ms L’s letter did not purport to provide, and could not be tendered as, an expert opinion.
  7. For the reason that Ms L’s letter did not bear the status of an expert opinion, the common law principles stated in Makita were not applicable to the determination of whether Ms L’s letter could be tendered in evidence. Further, as stated above Part 3.3 of the Evidence Act 1995 (Cth) does not apply to child related proceedings. On one view, the decision that the letter did not contain an expert opinion might be thought to support the further conclusion that the letter was otherwise irrelevant. In my view, the contents of that letter were not wholly irrelevant. Rather, they provided some narrative that informed the sequence of events which led to the present application.
  8. Secondly, tender of Ms L’s letter was opposed on the basis that s 131 of the Evidence Act 1995 (Cth) applied so as to preclude the adducing in evidence of the letter as being a communication which, relevantly, had been prepared in connection with an attempt to negotiate the settlement of a dispute: see sub-para 131(1)(b). In contrast with opinion evidence, para 69ZT(1)(c) of the Family Law Act 1975 (Cth), does not extend to remove the application of Part 3.10 (Privileges) of the Evidence Act 1995 (Cth) to child-related proceedings.
  9. I am prepared, for present purposes, to assume in favour of the applicant that Ms L’s letter was prima facieexcluded from being adduced in evidence by operation of para 131(1)(b) of the Evidence Act 1995 (Cth). It was in this context that I considered the failure to disclose the fact that the parties’ lawyers had signed and provided a joint letter of instructions to Ms L to be regrettable. This was because, notwithstanding that the parties had not retained the same lawyer, the fact of the joint letter of instructions might have supported an objection grounded on the basis of a joint privilege in Ms L’s letter which privilege had, quite clearly, not been waived by the father: cf s 124 Evidence Act 1995 (Cth); Morton v Bolinda Publishing Pty Limited [2017] FCA 187, at [65]-[66] (Burley J) citing Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259(1996) 39 NSWLR 601 at 608 (Sheller JA, Waddell JA agreeing); Tabcorp Holdings Ltd v State of Victoria [2013] VSC 302 at [122], (Sifris J).
  10. Although sub-s 131(1) would operate to make Ms L’s letter inadmissible, that provision is subject to a number of exceptions. Relevantly, by para 131(2)(i), a communication which is otherwise inadmissible may be adduced in evidence where the communication affects the rights of a third party.
  11. In the present case, the third party whose rights may be affected is X.
  1. I concluded that the communication contained in Ms L’s letter fell within the exclusion created by para 131(2)(i) with the result that it was not rendered inadmissible by para 131(1)(b). I concluded that Ms L’s letter contains evidence which, if accepted, could rationally affect, (directly or indirectly), the assessment of the probability of the existence of a fact in issue in the proceeding. In the present case, the ultimate fact in issue on this interim application concerns what it is that is in the best interests of the child.
  2. Finally, I accept the submission by Mr Robinson for the respondent mother that Ms L’s letter may be tendered in evidence but should be accorded such weight as appropriate in all the circumstances: cf sub-paras 69ZT(2)-(4).
  3. Quite apart from the circumstance that Ms L disavowed her letter as bearing the character of an expert opinion, it should not be assumed that the tender of an expert opinion will in all circumstances be of determinative significance upon a matter put in issue by the parties. In Amaca Pty Ltd (Under New South Wales Administered Winding Up) v King [2011] VSCA 447 (Nettle, Ashley and Redlich JJA) undertook a detailed consideration of the topic ‘Trial by experts?’. Their Honours held that the court is not required to have competent or trustworthy expert opinion before being entitled to make an affirmative finding upon a disputed fact and that, to the contrary, “the tribunal of fact is authorised to decide, on all the evidence, that the plaintiff has established that fact as a matter of probability”: see also Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1997) 16 ALR 23, 25-26 (Barwick CJ); HTW Valuers (Central QLD) Pty Ltd v Astonland Pty Ltd [2004] HCA 54(2004) 217 CLR 640, [47] (Gleeson CJ, McHugh, Gummow, Kirby and Hayden JJ); TCL Air-conditioner (Zhongsha) v Castel Electronics Pty Ltd (2014) FCAFC 83, [166] (Allsop CJ,  Middleton  and Foster JJ).

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation 

  1. On any view of the evidence the fact is that the father has had virtually no relationship with Y and his relationship with X has been significantly strained due to the distance between he and the child post separation.
  2. The father himself created some distance by moving to the (omitted) in February 2016, shortly after separation.
  3. The mother has added to that distance by relocation to Queensland.
  1. In assessing the evidence at this interim stage, I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since relocation in June 2016.
  2. These are interim proceedings. It is clearly the mother’s intention that she continue to reside in Queensland since her relocation. That will no doubt be her application on a final basis.
  3. If I caused the children to be returned to New South Wales this will cause a disruption to their life. A life that on my findings has been settled for approximately 12 months in Queensland following relocation. This has the potential to be disadvantageous to the children.
  4. Of course a move to New South Wales might place them closer to their father. The disadvantage of the move must be weighed against any advantage to be gained in having a meaningful relationship with the father.
  5. It is not the father’s application that the children should reside with him in the (omitted) area. It is his application that the children reside with the mother in the (omitted) area.
  6. I would therefore need to make a coercive order as to where the mother was to live.
  7. In Oswald & Karrington[5] the Full Court said that the court’s power to make a coercive order should be exercised only in rare and extreme circumstances.
  8. The Full Court in Sampson & Hartnett [6] said that there is an imperative for the court to explore and consider alternative to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parents choosing.
  9. There is no evidence before me to suggest that the father does not have freedom of movement. That is, the father does not say he cannot afford to travel to Queensland nor does he say that work commitments prevent him from travelling to Queensland.
  10. He will need to establish a relationship with Y and reconnect with X. This will require shorter visits and perhaps more frequent visits however I am not persuaded that based on the evidence currently before me that the father cannot or would not travel to Queensland for the benefit of his children.
  11. Furthermore, I am not persuaded that there are rare or extreme factors that warrant me exercising my discretion to make a coercive order. There has been too much water under the bridge. These children and their mother have resided in Queensland for approximately 12 months.
  12. In those circumstances, weighing the two competing proposals with regards to the disadvantages to the children, I am satisfied that it would be more disadvantageous to remove them from Queensland at this time.

Equal time contraindicated by parents conduct

Equal time contraindicated by parent’s conduct

Equal time – Assessment of the evidence

  1. As is often the case there is much in dispute between these parents.
  2. In those circumstances, particularly at interim hearings, independent evidence assists the court greatly in assessing the probabilities of competing claims and the likely impact on children. I have referred to the independent evidence above.
  3. Submissions on behalf of the father were to the extent that I should not rely upon the memorandum of the family consultant.
  4. Solicitor for the Respondent father quoted Hall & Hall (1979) FLC 90–713. Submissions were to the effect that there “is no magic in a family report.” It was submitted, arguably, that proposition applies with greater force at an interim hearing where evidence is usually untested.
  5. Of course, the court said in Hall & Hall[8] that reports are meant to be, and usually are, valuable material to assist the Court in informing ultimate conclusions.
  6. The evidence of Ms L is untested. However, much of her report and the recommendations based therein are based on agreed facts. Particularly having regard to the care arrangements for X. It is in relation to the care arrangements moving forward that I am most interested in.
  7. It was submitted that Ms L placed too much emphasis on the mother’s assertion that the child was clingy.
  8. Ms L was careful to point out the reasons why she believed X was primarily attached to the mother.
  9. It was as a result of her very young age, and the fact that she had been predominantly cared for by the mother in her early years and notwithstanding that the child is “cared for” by both parents now, as she has been since she was approximately 15 months old, the father was required to work away from home during that time and the care in the father’s home involves care provided by many others.
  10. It was in those circumstances, all of which were agreed circumstances, that Ms L formed the view that the “care arrangements would seem to indicate that the mother is likely to have been the primary carer.”
  11. In those circumstances I am of the view that I can place some reliance on that independent evidence.

Equal time – Relevant section 60CC(3) matters

Section 60CC(3)(b)

  1. The father says that the child is primarily attached to both he and the mother. The mother says that she is the child’s primary attachment.
  2. The family consultant, mostly based upon the uncontested facts, is of the view that the child is most likely to have a primary attachment to the mother.
  3. In weighing the probabilities of the competing claims of the parties, I am of the view that it is more probable that the child is primarily attached to the mother based upon the evidence currently before me.
  4. The evidence also establishes that the child would have strong connections with both maternal and paternal external family members.

Section 60CC(3)(d)

  1. It is the father’s case that the present care arrangements remain in place unless I am satisfied that there is an unacceptable risk of harm in the mother’s care.
  2. It is the mother’s case that the child should live primarily with her and spend time with the father.
  3. If I make no change to the child’s current arrangements, it is the view of the very senior family consultant that it is “likely that the current shared care arrangement is not in X’s best interests.” It is the family consultant’s view that X needs a stable and secure situation.
  4. The evidence, and indeed the way in which the matter presented before me, clearly indicates that the co-parenting relationship between these parents is very fractured at this time.
  5. The allegations raised by the father are serious and he persists with those allegations, trying to find fault in scientific investigations and attempting to prove his assertions by providing evidence of transactions from bottle shops.
  6. It is not surprising that the mother finds this persistence and these allegations confronting and upsetting. It is not surprising in those circumstances that there is currently minimal communication between the parents and currently a poor co-parenting relationship.
  7. Despite anything else, shared care arrangements are contraindicated in circumstances where there is dysfunction in the co-parenting relationship and very poor communication between parents. Shared care arrangements require flexibility, communication, and a consistent approach to parenting by both parents. Shared parenting arrangements require trust, acceptance of each other’s appropriate care and a common focus on the best interests of the child.
  8. The evidence as it presented before me was not indicative of a finding that these parents can appropriately, in the best interests of their child, maintain a shared care arrangement.
  9. In those circumstances there must be a change to this child’s care arrangements.
  10. There will no doubt initially be some unsettling for the child as a result of this change. That disadvantage must be weighed against the advantage of having a settled routine in one of the parent’s homes.

Section 60CC(3)(f)

  1. The father retained the child for three weeks. The father can find no disadvantageous effect in the child as a result of this. This raises concerns about the father’s capacity to meet the emotional needs of the child.
  2. It seems to me that the father used the child as a tool to ensure that the mother entered into a parenting arrangement that suited him. This is most inappropriate.
  3. The mother too, at times, has created distance between the child and the father. This shows that at times she cannot properly meet the emotional needs of the child.
  4. Both parents need to refrain from focusing on each other’s faults and begin to focus on the child’s needs. The harm caused by ongoing conflict to this child has the potential to cause disastrous effects for her psychological well-being. Both parents need to be mindful of this fact.
  5. Nothing turns in relation to the other subparagraphs of Section 60CC(3). There can be at this stage no findings as to family violence, however as I previously stated, I am certain that the child is not at risk to exposure to physical violence in the father’s home. I am also convinced that the child is not at risk of physical violence in the mother’s home.

Parental responsibility

  1. Section 61DA(3) provides that the presumption applies unless I consider it would not be appropriate in the circumstances for the presumption to be applied.
  2. Whilst these parents have a dysfunctional relationship at this time, there is no evidence currently before me that could satisfy me that the child’s welfare is being put at risk as a result of that dysfunction.
  3. That is, there is nothing before me that could indicate that X is missing out on appropriate medical care, day care or supervisory care in either parent’s home.
  4. For those reasons the presumption is to be applied.

Section 65DAA

  1. I have already set out why I am of the view that a shared care arrangement is not in the best interests of the child. It is currently contraindicated due to the parent’s behaviours in this matter.
  2. It may be that in the fullness of time should the co-parenting relationship improve that an equal time arrangement might be in the best interests of X. Only time can tell. It is now up to the parents to put their child’s best interests first.
  3. It is the mother’s proposal that the child spend time with the father for three nights a fortnight. That does not amount to substantial or significant time.
  4. I am of the view that there should be substantial and significant time for X as it is in her best interests based upon her care provided by these parties throughout her life.
  5. I am not bound by either party’s proposal (U v U [2002] HCA 36(2002) FLC 93-112). I intend to make an order for substantial and significant time as I am of the view that it is both in the child’s best interests and reasonably practicable based upon the evidence that I have referred to previously.

Time limit to start property settlement proceedings upheld against husband

Time limit to start property settlement proceedings upheld against husband

Property – application for leave to institute proceedings pursuant to section 44(3) refused – restraint on bringing further proceedings pursuant to section 79 – considerable delay in bringing proceedings – applicant may have claim against solicitor in respect to delay – respondent solely contributing to mortgage, maintaining the property and renovations since separation – intermingling of respondent and new husband’s assets – direct and indirect contributions of the respondent’s parents.

It therefore follows, from those authorities in my view, that I must consider and determine the following matters:

  1. whether hardship would be caused to the husband if leave were not granted;
  2. whether, if hardship is established, I am persuaded that the discretion should be exercised;
  3. whether the husband has a prima facie case or a real probability of success;
  4. whether the costs of litigation will be as much or more than the husband is likely to be awarded;
  5. what is the length of delay;
  6. what were the reasons for the delay;
  7. what is the prejudice to the respondent due to the delay;
  8. assess the probable outcome of the husband substantive claim;
  9. whether the husband took all reasonable steps to pursue his claim;
  10. whether there is any evidence to suggest that the applicant at some stage abandoned his case.

Assessment

  1. The evidence establishes that there has been considerable delay.
  2. Between January 2012 and January 2017, when the respondent was served, some five years has passed.
  3. Three years and three months had passed between the party’s divorce and the time of filing.
  4. From the time the applicant first saw a lawyer in August 2014 until the filing of his application in December 2016, 2 years and 4 months had passed. On any view that is a considerable delay.
  5. As to the reasons for that delay the evidence establishes that the husband did not want to take any action until his son had finished school, that child being in year 11 when the parties separated. That child finished school in 2013. The husband took no steps to commence proceedings at that time.
  6. The husband says that thereafter he could not commence proceedings because he did not know where the wife was living.
  7. I do not accept that evidence. The respondent was contacted in 2014. The next contact the applicant had with the respondent, based on the evidence before me, is when the respondent was personally served with the applicant’s application.
  8. No evidence is provided as to how the applicant became aware of the respondent’s address. I am not satisfied that the applicant did not know the respondents address at all times.
  9. I am not satisfied that the husband took all reasonable steps to pursue his claim. The length of delay in and of itself represents a very casual approach to this litigation.
  10. I am satisfied that there is some evidence to suggest that the applicant at some stage abandoned his case.
  11. The wife says he was fully aware that he had no claim to the property since the time the property was transferred into her name.
  12. The husband says that he knew it had to be transferred into her name because his credit rating was no good. The husband then took no steps to make a claim on the property until at least 2 years and 10 months after separation.
  13. That attempt was in my view very much a half-hearted attempt. The husband then takes no further steps it seems until filing his application in December 2016, some 2 years 4 months after his initial contact with the respondent.
  14. In those circumstances it is reasonable for the respondent to consider that the applicant abandoned his case.
  15. As to whether there is hardship caused to the applicant if the claim is not permitted I note that in assessing hardship I must find that the applicant has a prima facie claim worth pursuing.
  16. This case is significantly impacted upon due to a number of factors namely:
    1. the length of delay;
    2. the financial and non-financial contribution arguments by both parties; and
    1. the intermingling of funds in relation to the subject property for some considerable period of time.
  17. In effect there will be three people involved in the litigation. The property does not represent a substantial asset.
  18. Having regard to the significant period of time post separation that the respondent has been responsible for the maintenance, further renovations and payment of mortgage, the fact that the evidence, I believe, is most likely to establish that the respondent was the primary income earner, and the indirect contributions and direct contributions made by the respondent’s parents, leads in my view to a very limited claim for the applicant.
  19. The solicitor for the applicant has estimated his costs in relation to the further proceedings quite conservatively in my view.
  20. I say this particularly having regard to the difficulty that delay will bring in obtaining necessary evidence, the fact that the respondent’s partner will no doubt be joined; and the fact that the respondent says she will bring a Kennon type claim to the proceedings.
  21. The solicitor for the applicant conceded that the applicant may have a claim against his firm due to the matters he sets out in his affidavit.
  22. I am concerned that the costs of litigation might well be as much or in fact more than the applicant might be likely to be awarded doing the best that I can to assess the possible outcome of the husband’s substantive case if leave would be granted.
  23. The degree of the hardship suffered by the applicant may indeed be ameliorated should he have a successful claim against his solicitor.
  24. Whilst I accept that there may be some minimal hardship to the applicant, I am not persuaded for the reasons I have set out that I should exercise my discretion and allow the applicant to commence proceedings out of time.