Almeras & Velez (No 2) - [2024] FedCFamC2F 1117

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Almeras & Velez (No 2) [2024] FedCFamC2F 1117

File number(s): WOC 192 of 2024

Judgment of: JUDGE TURNBULL

Date of judgment: 9 August 2024

Catchwords: FAMILY LAW – EVIDENCE – CONTRAVENTION – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion.

Legislation:
Evidence Act 1995 (Cth) ss 138, 189

Family Law Act 1975 (Cth) s 4AB

Surveillance Devices Act 2007 (NSW) s 7

Cases cited:
Corby & Corby [2015] FCCA 1099

DW & R [2014] NSWCCA 28

Janssen & Janssen [2016] FamCA 345

Nanosecond Corporation Proprietary Limited v Glen Carron Proprietary Limited [2018] SASC 116

Sepulveda v The Queen [2006] NSWCCA 379

Yagin & Harstad [2024] FedCFamC1F 202

Division: Division 2 Family Law

Number of paragraphs: 42

Date of last submission/s: 7 August 2024

Date of hearing: 7 August 2024

Place: Hobart via Microsoft Teams

Counsel for the Applicant: Mr Mountasellem

Solicitor for the Applicant: Dgb Lawyers

Counsel for the Respondent: Ms An

Solicitor for the Respondent: Charis Law Pty Ltd
ORDERS

WOC 192 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ALMERAS

Applicant

AND:
MS VELEZ

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

9 AUGUST 2024

THE COURT ORDERS THAT:
1.The seven video recordings exhibited as VA2 in the voire dire be admitted as evidence in the substantive contravention proceedings.
2.These proceedings are adjourned part heard to 10:00am 27 September 2024 at the Federal Circuit and Family Court of Australia at City B with all parties granted leave to appear by Microsoft Teams.
3.The transcript of the Reasons for decision given today is to be placed on the court file.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview

These are the published version of Reasons delivered rem parte on 9 August 2024. The Reasons have been slightly altered for ease of reading.
This is an application for contravention filed by Mr Almeras (‘the Father’) against Ms Velez (‘the Mother’)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Almeras & Velez (No 2)

Details

AGLC: Almeras & Velez (No 2) [2024] FedCFamC2F 1117
Case: [2024] FedCFamC2F 1117
Decision Date: 9 August 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 2) heard a case between Mr Almeras and Ms Velez, involving allegations of contravention under the Family Law Act 1975 (Cth). The primary issue before the court was whether seven video recordings, which were potentially obtained illegally, should be admitted as evidence in the substantive proceedings. These recordings were crucial in assessing the allegations against Mr Almeras regarding the welfare of the children.

The court needed to determine the admissibility of the video recordings, considering whether they were obtained illegally and whether their admission was justified under the court’s discretion. Specifically, the court had to weigh the necessity of the recordings to protect the children's lawful interest against the potential illegality of their procurement. The court also had to decide if the illegality of the recordings precluded their admission, or if the court could exercise its discretion to allow them as evidence.

Judge Turnbull found that the recordings were reasonably necessary to protect the children's lawful interest, and despite their illegal procurement, they could be admitted under the court’s discretion. The court recognised the importance of the recordings in determining the welfare of the children and concluded that their probative value outweighed any prejudicial effect of their illegality. Consequently, the court ordered that the recordings be admitted as evidence in the substantive proceedings. The case was adjourned part heard to allow further evidence to be presented.

The court's orders included the admission of the seven video recordings as evidence, an adjournment of the proceedings, and a directive for the transcript of the reasons for the decision to be placed on the court file. The form of the order is subject to formal entry in the Court's records, with a note that any minor typographical or grammatical errors may be subject to review and correction.

Orders

Orders of the court

WOC 192 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ALMERAS

Applicant

AND:

MS VELEZ

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

9 AUGUST 2024

THE COURT ORDERS THAT:

1. The seven video recordings exhibited as VA2 in the voire dire be admitted as evidence in the substantive contravention proceedings.

2. These proceedings are adjourned part heard to 10:00am 27 September 2024 at the Federal Circuit and Family Court of Australia at City B with all parties granted leave to appear by Microsoft Teams.

3. The transcript of the Reasons for decision given today is to be placed on the court file.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	WOC 192 of 2024
Judgment of:	JUDGE TURNBULL
Date of judgment:	9 August 2024
Catchwords:	FAMILY LAW – EVIDENCE – CONTRAVENTION – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion.
Legislation:	Evidence Act 1995 (Cth) ss 138, 189 Family Law Act 1975 (Cth) s 4AB Surveillance Devices Act 2007 (NSW) s 7
Cases cited:	Corby & Corby [2015] FCCA 1099 DW & R [2014] NSWCCA 28 Janssen & Janssen [2016] FamCA 345 Nanosecond Corporation Proprietary Limited v Glen Carron Proprietary Limited [2018] SASC 116 Sepulveda v The Queen [2006] NSWCCA 379 Yagin & Harstad [2024] FedCFamC1F 202
Division:	Division 2 Family Law
Number of paragraphs:	42
Date of last submission/s:	7 August 2024
Date of hearing:	7 August 2024
Place:	Hobart via Microsoft Teams
Counsel for the Applicant:	Mr Mountasellem
Solicitor for the Applicant:	Dgb Lawyers
Counsel for the Respondent:	Ms An
Solicitor for the Respondent:	Charis Law Pty Ltd

WOC 192 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ALMERAS Applicant
AND:	MS VELEZ Respondent

ORDER MADE BY:	JUDGE TURNBULL
DATE OF ORDER:	9 AUGUST 2024