Baghti and Baghti

[2010] FamCA 171

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI [2010] FamCA 171

FAMILY LAW – PRACTICE AND PROCEDURE – Stay pending appeal

APPLICANT: Mr Baghti

RESPONDENT: Ms Baghti

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2145 of 2009

DATE DELIVERED: 10 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 4 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Mourice

SOLICITOR FOR THE RESPONDENT: PIGOTT STINSON RATNER THOM

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Connor
LEGAL AID NSW

Orders

1. That the husband’s application for a stay of Order 8. made 19 January 2010 pending appeal is hereby refused.

2. That the husband’s application for stays of Orders 12. 13. and 14 made 19 January 2010 pending appeal is hereby granted.

IT IS NOTED that publication of this judgment under the pseudonym Baghti & Baghti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2145  of 2009

MR BAGHTI

Applicant

And

MS BAGHTI

Respondent

REASONS FOR JUDGMENT

1. Before me are essentially two applications to stay orders I have made pending appeals against those orders. The orders which were made were interlocutory orders. The orders relate to a child welfare matter. Leave may be needed for an appeal to be lodged. I am of a mind that the orders made and sought to be appealed from really relate to procedural matters; the preparations for trial of parenting issues and the preparations for trial of a child welfare matter, and that they are to be distinguished from orders which determine residency, contact, and parental responsibility which are orders relating to child welfare matters. The appeals which have been lodged are likely to suffer the fault of needing leave to appeal. Nevertheless, because it is likely that the issues on appeal are likely to be narrowly confined, the Full Court is, if it takes the view that leave is or may be necessary, likely to hear the leave application and appeal together. I should not therefore take the short sighted view that because leave has not been sought or granted I should not grant a stay.

2. The orders sought to be appealed from were made on 19 January 2010 when the matters were before me as a result of a dispute over the issue of subpoenas and the husband’s appeal from orders made by a judicial registrar. Among other things, I had been told that the family consultant had made a report in short form in which she canvassed the possibility that the wife might be mentally incapable of caring properly for the parties’ 6 year old son if the husband’s allegations are true and, if they are not, there are concerns about the husband’s mental health and his parenting ability.

3. In her report of 9 December 2009 the family consultant went further than that. She concluded that it would be more appropriate to obtain a report from a psychiatrist, in preference to a report from a family consultant, to identify the parent’s mental health issues and the risk each poses to the child.

4. One of the matters which was before me was a review of residency orders made by a judicial registrar. He had made orders after a defended hearing which principally provided that the child now live in a week about regime with each parent. The orders were made on 11 November 2009, before the family consultant had made her report of 9 December 2009. It seemed to me to be in the child’s best interests to obtain a psychiatric report on both parties’ parenting ability before embarking on a second hearing over the child’s residency, especially because of the risk of harm implicit in the family consultant’s report and the inevitability of the need to obtain psychiatric evidence and the possibility that, on obtaining a psychiatric report, there would be a need to change the residency orders which had already been made. I therefore made an order which the wife consented to but the husband opposed in these terms:

   “8. That Dr [M] be appointed pursuant to rule 15.45 as a court expert to examine and report on the capacity of the parents to care for the parties’ child taking into account any psychological condition which may affect the capacity of the parents to care for the child.”

5. The husband has appealed against that order. The notice of appeal pleads the general issue, i.e. asserts error without providing any particulars of the error which it is claimed I made. In those circumstances, the husband seeks a stay of the order as it applies to him.

6. When asked what the error which was made is, counsel for the husband said that I should have determined the facts relied on by the husband and wife before deciding whether the husband should be psychologically examined because, in her report the family consultant said about the husband only, “if his allegations are unsupported or are found to have been exaggerated or fabricated, then this raises concerns about this own mental health and his capacity to support and facilitate [the child] having an ongoing (positive) relationship with his wife.” This overlooks the fact that in interim proceedings like these, because of their nature, the Court cannot and should not attempt to determine disputed facts, but must make a decision on a temporary residential regime for the parties’ child. Although the court cannot, even if it has an expert report on the mental health of both parents and any risk they pose to the child, come to any conclusion of fact about these matters, it can speculate on the prospects that emerge from the report about the conclusions of fact of relevance to the child’s welfare which the Court which will finally reach in the residential dispute. By doing that, the Court hearing the interim residency issue can consider and decide where any risks to the child’s welfare lie and weigh them. This and the inevitability of the need for a psychiatric report on both parents in view of the type of allegations each has made and the way in which the matter is being conducted make the argument that a report should only be ordered after determination of the factual issues which may, but may not, be relied on by the expert to determine the psychological status of the parties have no reasonable likelihood of success. The psychological condition of the parties could well be decided by the expert without reliance on the allegations against one another. The psychiatrist is likely to rely on his own observations, making the allegations irrelevant to the process.

7. Where an appeal has no reasonable likelihood of success a stay pending appeal should not be granted. As I am of the view that the husband’s appeal, as it has been presented to me, against Order 8. has no reasonable prospects of success, I should, on this ground alone, refuse the husband’s application to stay it pending appeal.

8. There are other reasons to refuse this application. Refusal of a stay may be said to take away from the husband the prospect of benefit through the success of an appeal. Here, however, if the appeal is successful even though it is determined after the report has been obtained and published, and the psychiatrist relies on the wife’s claim, it cannot harm the husband’s prospects in the residence proceeding. The report will merely become inadmissible or be of no weight against him.

9. A very significant reason to refuse the stay is the undue delay which would result in determining interim residence by undertaking a determination of the relevant factual issue before deciding whether or not to order a report. There is an obvious need for the Court to know what the Court which can decide disputed facts is likely to find about the parents’ psychological status.

10. I am quite satisfied that in relation to the appeal against Order 8, that a stay should be refused.

11. The balance of the stay application relates to orders 12, 13 and 14 of 19 January 2010. These require disclosure to the wife and Independent Children’s Lawyer of visual and other materials obtained by surveillance of the wife by private detectives acting on behalf of the husband. I was informed by the wife’s counsel during the hearing on 19 January 2010 that the husband intended to bring contravention proceedings against the wife and that the evidence in these proceedings in the appeal by way of rehearing from the Judicial Registrar’s decision would involve such material and, in particular, video evidence of a call at the wife’s home by an ambulance. I was told that video material showed the child entering and later emerging from the ambulance while it was parked at the wife’s home. I was informed that this was just a portion of the surveillance material the husband had obtained.

12. I ordered the husband to, in effect, show the wife and the Independent Children’s Representative all the contents of all surveillance material the husband had obtained. There was, in evidence before the Judicial Registrar, a DVD. I was also asked to see a DVD, probably the same one. Thus any legal professional privilege which might otherwise attach to that DVD was waived.

13. Section 126 of the Evidence Act, 1995 (Cth) provides for the situation where a party might attempt to make a limited waiver of privilege where such evidence might create a different impression out of it’s context than that it would create in the context which is reasonably necessary to enable a proper understanding of it. In s126 itself, the word used to refer to such evidence appears to limit it to communications or documents. “Document” is defined in the Dictionary which s3 is part of the Evidence Act to include a record of information by way of sounds or “images” which are reproduced by use of electronic equipment. A DVD or any other record of surveillance must be regarded as a “document” for the purposes of the Evidence Act.

14. If evidence which would otherwise be privileged is relied on, the privilege which would otherwise be attached to evidentiary material which would allow a proper understanding of the evidence is taken away. Here, one incident which was seen during surveillance is relied on in what has apparently been extensive surveillance. Without the other surveillance material, one cannot fully appreciate whether the whole of the incident has been shown in the evidence of which privilege has been waived or whether concentration on a single incident over emphasises an aspect which will be seen in a different light if all the surveillance material is shown.

15. The children’s issues proceedings are conducted pursuant to Division 12A of Part VII of the Family Law Act. Subdivision D of that division consists of special evidentiary and procedural principles to be applied in the conduct of such proceedings. The provisions of the Evidence Act which are specifically inapplicable under S 69ZT(1) of the Family Law Act do not include those on legal professional privilege. The general intent of this part of the Act and the Act in general is to ensure that, in determining children’s issues, the best interests of the child are paramount. The specific provision of S 69 ZN(3) is that, in Division 12A proceedings, the first principle the Court must apply in the conduct of such proceedings is that there must be consideration of the needs of the relevant child and impact that the conduct of the proceedings may have on the child. Section 69ZX(1)(e) can be in conflict with the upholding of legal professional privilege because it allows the Court to “ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses… on matters relevant to the proceedings”. It is already well established that where there is conflict between considerations of the welfare of the child; a matter of public interest and a statutory requirement, and privilege from disclosure based on public interest, as legal professional privilege is, each must be weighed on a case by case basis. The Court must decide which shall prevail (see Hutchings v Clarke (1993) 16 Fam LR 452). Privilege can be displaced by the need to ensure the welfare of a child.

16. Here the level of surveillance had and has a great potential to upset and destabilise the wife and therefore undermine her ability to care for the child. At most, any maintenance of privilege from disclosure of the balance of the surveillance material would have given the husband the opportunity to cross-examine the wife in the contempt proceedings or in the final parenting proceedings in circumstances where the wife would already know she had been subjected to wide ranging surveillance. The surveillance material would be unlikely to show she has not been candid during cross-examination or that she was distorting the facts even if the wife had not seen the video material. When compared to the situation which would prevail if the surveillance material had been disclosed before the wife was cross-examined the only difference could be to credit, but there would not be much difference. The relevant evidence on the children’s issues would not be altered. Disclosure of the surveillance material would take undue pressure off the wife, tend to prevent further pressure of this type being placed upon her and therefore alleviate some risk to the parties’ child while being likely to make little difference to the factual findings or factual possibilities.

17. It was appropriate to order the disclosure of all the surveillance material as soon as possible. Thus, the husband’s appeal against orders 12. 13. and 14. is weak. Nevertheless, the situation is not so clear that the husband can be said to have no reasonable prospects of success on appeal. It is certainly the case that the husband will be prevented from having the benefit of being able to cross-examine the wife without her knowing what the surveillance material shows, in the contravention proceedings or the final parenting proceedings but not both. If a stay is not granted his appeal will be rendered nugatory. I am of the view that a stay pending appeal or further order of the Court of orders 12, 13, 14 should be granted. I shall make such an order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen.

Associate:     

Date:              10 March 2010