The recent decision of Jagic & Mattias is a succinct reminder of the difficulties that can arise in family law proceedings when concurrent criminal proceedings are on foot.
This was an appeal by the mother against interim parenting orders that were made for the three kids to live with the father – where the trial judge had found that the mother assaulted the middle child and the children were at an unacceptable risk of harm in the mother’s care.
The mother argued, inter alia, that the trial judge had wrongly found that she had assaulted the middle child. The mother argued that the finding was made on “disputed and untested evidence” and that legal principles prohibit the trial judge from making any factual finding. Per Justice Austin, sitting as a single judge of the Appeal Court: “neither contention is correct”.
Justice Austin pointed out that the trial judge relied on the father’s affidavit evidence – and that the mother did not provide any contradictory account.
The mother deposed an intention to “vigorously defend the allegations” but Justice Austin said that was “no more than an intention, which may change. It was not evidence which contradicted the facts established by the evidence adduced by the father”.
Justice Austin went on to say that it was meaningless to say that such facts were “untested” when they weren’t contradicted. No application was made to cross-examine the father. His Honour said that the hearsay evidence of the accounts of the children (via the father’s affidavit) was admissible even if the rules of evidence applied although they didn’t in this instance because no application was made for them to apply.
His Honour said that the mother was certainly entitled to maintain her silence “but she has to bear the forensic consequences of her decision”. His Honour relied on Vetter v Lake Macquarie City Council inter alia in stating that “all evidence must be weighed and assessed in light of the parties’ respective capacity to produce it; and found that aside from the children the mother was the only other person who could give direct evidence but deliberately chose not to.
Justice Austin said that the mother’s voluntary silence on the issue permitted the primary judge to more easily make findings and draw available inferences against her from the father’s evidence: Weissensteiner v R and G v H amongst others.
In relation to findings of fact his Honour said “findings of fact can always safely be made on uncontested evidence, though it is well established that findings made in interlocutory proceedings should be circumspect if the evidence upon which they are made is or is liable to be controversial: Marvel v Marvel. “Certain provisions of the Act actually require a judge to react to credible evidence of risks of harm to which children might be exposed and against which they require protection, thereby making findings about such risks indispensable.”
The mother was unsuccessful and ordered to pay costs for the ICL and the father.
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