Monday, 23 February 2009

Family Court case: reasons can be given about violence at interim stage

Family Court judges have been reluctant, for a long time, to make decisions as to credit at an interim stage, because this may have an impact on findings that are made at the ultimate trial of the matter. This issue was less acute when interim hearings involved cross-examination- because judges could see parties in the witness box and might have the opportunity to draw conclusions from that.

For about the last 20 years, however, it has been rare for interim decisions to involve cross-examination - so judges have had to rely on affidavit material from each of the parties which might directly contrast with the other's.

The classic example of where credit issues come into play is when one party, usually the mother, asserts that the other, usually the father, has engaged in domestic violence. The other denies the allegations, or makes other counter-allegations.

In the leading children's decision following the 2006 changes, Goode and Goode, the trial judge when faced with domestic violence allegations refused to make findings about whether or not there had been domestic violence. This decision was upheld on appeal, a matter criticised by noted Brisbane academic Zoe Rathus on this blog in 2007 as The Bad in Goode.

It is with that background that the recent Full Court of the Family Court case of Garde and Raddison is of interest. The father's case was that he wanted interim orders as to joint parental responsibility and shared parenting for the parties' baby. The mother wanted interim orders for the appointment of an independent children's lawyer, a psychiatric assessment of the father, the obtaining of a family report and for the father to have no contact with the baby whatsoever.

The Federal Magistrate made no interim orders and set the matter down for trial. The reasons for judgment were very short. Here they are in their entirety:

  1. The paramount consideration the Court must have regard to in this matter are the best interests of the child.
  2. There is evidence of family violence involving a member of the child’s family. That is a matter the Court must take into account under s.60CC(3)(j) of the Family Law Act 1975.At this stage that evidence cannot be contested or is not being contested. The Court does not feel able to make an order as sought by the father until such evidence is tested.
  3. The Court therefore does not make the order sought by the father on an interim basis.
  4. The matter is adjourned for a final hearing on 23 and 24 April 2009.
  5. The Court does not find factors in existence which warrant the appointment of an Independent Children’s Lawyer and will not request Victorian Legal Aid to arrange such representation.

The mother's case

The mother asserted that she learnt, while pregnant with the child, that the father had been convicted and imprisoned for the murder of his former partner. He served 11 years. She said that she was frightened. She described a pattern of abuse that escalated until after separation. She described obtaining an intervention order. Despite his being bailed by police on condition that he have no contact with the mother, the mother said that the father continued to call her and abuse her.

The mother found about media interest in the father, and then learnt from his former partners (after he had been released from jail) that he had threatened to kill them.

By the time of the hearing, the father had not had time to respond to the mother's material.

The Full Court decision

The Full Court stated:


The reasons for judgment do not shed any light on why no orders were made as
sought by the parties. It can perhaps be understood why no interim parenting
orders were made in light of the material before the Federal Magistrate. But
given the nature of the matter, and the fact that the Federal Magistrate set the
matter down for final hearing, in a case in which an independent children’s
lawyer would be warranted (Re:
K
)expert opinion on such issues of family violence and familicide would be
anticipated and in a matter where one party sought that the other party spend no
time with the child, it is somewhat surprising that no such orders were
made.

To be fair to the Federal Magistrate, although the mother sought orders for
the appointment of an independent children’s lawyer and a family report in her
application, in oral submissions her counsel resisted the appointment of an
independent children’s lawyer and did not seek a family report. Nevertheless, in
a case in which the inquiry is into the best interests of the child and the
issues raised are serious and troubling, a failure to give reasons for not
making orders as sought by the father in our view constitutes an error of
law...

While the Federal Magistrate is correct in saying that finding cannot
be made until evidence is tested, there is sufficient concerning evidence on the
part of the mother, which was not the subject of contest, for at least some
reasons to be given. For example, there were intervention orders obtained by the
police and the father had admitted the murder conviction. In a case involving
serious allegations of family violence, an assertion by the mother that the
father may be a candidate for familicide, and considering the expert evidence
that would be required in order to determine this matter at a final hearing,
there was in our view an obligation to expose the reasoning leading to the
conclusion that no order for appointment of an independent children’s lawyer be
made.

Just to show that the Federal Magistrate did not take the issue of violence seriously, the Full Court stated:

During the course of the proceedings before the Federal Magistrate, counsel for
the mother raised with the Federal Magistrate the prospect of the matter being
transferred to the Family Court. Counsel noted that it was a matter that would
take six to eight days in hearing and referred the Federal Magistrate to the
mother’s affidavit of some 38 pages. The Federal Magistrate was informed that
the matter involved a murder conviction, that there would be much psychiatric
evidence given as to what the psychiatric state of mind of the father was at the
time the murder was committed and a lot of evidence given. The Federal
Magistrate indicated that although there had been a policy that cases beyond two
to three days would not be heard, that policy “was rescinded some months ago.”
To be fair, counsel did not press the point and said that it would not be a
problem “as long as we can get 6 to 8 days for the hearing of the trial.” As is
already apparent, both the judgment and the orders note that the matter was
listed for a two day hearing. No explanation of why that occurred appears in the
judgment.

With the matters in this case, how could there be possibly be a just determination of such complex issues in two days?

The Full Court remitted the matter back to the Federal Magistrates Court to be heard by another magistrate.

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