AYOUBI & TAWAKOL

[2014] FamCA 1240

FAMILY COURT OF AUSTRALIA

AYOUBI & TAWAKOL [2014] FamCA 1240

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – INTERIM ORDERS – Where the father sought to adduce evidence of two telephone video recordings – where the father has not filed a reply to the mother’s affidavit – consideration of Division 12A – evidence admitted – father’s reply read onto the transcript

Family Law Act 1975 (Cth) Division 12A

APPLICANT: Ms Ayoubi

RESPONDENT: Mr Tawakol

INDEPENDENT CHILDREN’S LAWYER: Ms Devine

FILE NUMBER: MLC 3196 of 2012

DATE DELIVERED: 18 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 18 September 2014

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lampe Family Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ayoubi & Tawakol has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3196 of 2012

Ms Ayoubi

Applicant

And

Mr Tawakol

Respondent

And

Independent Children’s Lawyer

REASONS

1. These are child-related proceedings which are conducted in accordance with Division 12A of the Family Law Act 1975 (Cth). The principles for conducting proceedings of this kind are clear and there are a number of principles which are relevant and particularly relevant in relation to the question of these recordings.

2. Firstly, there are two pieces of evidence.  One is a very brief video recording, a matter of seconds long, which shows a woman picking up a child.  The father says that it was recorded on a telephone belonging to one of the elder children in early 2012.  The other piece of evidence is an audio recording which goes for approximately two minutes and was, the father says, recorded, in this case, on a specific date, being 8 February 2012, and again recorded on a phone by one of the children.  That recording is clearly of some sort of altercation.  It would appear to be between the mother and one or two of the children.  Whilst I have been given a brief summary of what may have been said, I do not have a detailed translation of that recording. 

3. One of the principles under Division 12A is that the Court is to actively control, direct and manage the conduct of these proceedings. The proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible. It is also the case that many of the rules of evidence do not apply; some of which, if they did apply, would exclude this evidence.

4. As I explained to the father, the evidence could be of advantage or disadvantage to his case.  It could go either way.  Notwithstanding that, the father does seek to have this evidence admitted.  Ultimately it does go to a question of weight.  Whilst that weight might be minimal, in circumstances where the mother does not oppose or strongly oppose that material being admitted on the basis that she be given an opportunity to respond to it, I propose to admit it, save that I am going to ask that the audio recording be translated.  Perhaps the best way that that could occur would be if the father’s interpreter could translate it and then if the mother’s interpreter is given an opportunity to look at the translation and verify that it would appear to be a proper translation.

5. The other matter in this case is that not only has the father not raised nor produced this evidence previously, he has also not filed an affidavit in reply to the mother’s affidavit.  He says that he is not legally represented.  That may be the case, however, it was made very clear to him on the first day of hearing that whether he is to be represented or not, he needs to comply with orders with respect to the filing of affidavits. He has not done so. That being said, I do not want this hearing to be unnecessarily delayed and want the evidence to be heard and the matter to be determined.

6. In those circumstances, I have asked the father to read the affidavit filed on behalf of the mother over the luncheon adjournment and prepare a response to that affidavit.  He has, in fact, written out a response in Arabic and I propose to have that response read onto the transcript so that the mother is then aware of the father’s responses to her affidavit before she is in the witness box being cross-examined. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 September 2014.

Associate:

Date:  22 December 2014