Baldoni & Baldoni - [2021] FedCFamC1F 289

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baldoni & Baldoni [2021] FedCFamC1F 289

File number(s): SYC 1234 of 2019

Judgment of: KARI J

Date of judgment: 13 December 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – admissibility of audio recordings – where the wife exhibited two audio recordings to her trial affidavit – where the husband raised an objection to the recordings pursuant to section 138 Evidence Act 1995 (Cth) – whether the audio recordings were obtained in contravention of an Australian law – discretion to admit audio recordings considered – probative value of the recordings considered – audio recordings excluded from evidence

Legislation:
Evidence Act 1995 (Cth) ss 138(1), 138 (3)

Family Law Act 1975 (Cth) ss 4AB, 79

Surveillance Devices Act 2007 (NSW) ss 7(1), 7(3)

Cases cited:
Nagel & Clay [2020] FamCA 326

Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63

Parker v Comptroller-General of Customs (2009) 83 ALJR 494

Parker v Comptroller-General of Customs [2007] NSWCA 348

Rathswohl v Court [2020] NSWSC 1490

Division: Division 1 First Instance

Number of paragraphs: 76

Date of hearing: 17 November 2021

Place: Adelaide

Counsel for the First Applicant: Mr Lethbridge SC

Solicitor for the First Applicant: Edwards Family Lawyers

Counsel for the First Respondent: Mr Coleman SC

Solicitor for the First Respondent: Rockliff Snelgrove Lawyers

Counsel for the First Intervener: Mr Noakhtar

Solicitor for the First Intervener: Somerset Ryckmans
ORDERS

SYC 1234 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BALDONI

Applicant

AND:
MR BALDONI

Respondent

MR VERTUE

Intervener

ORDER MADE BY:

KARI J

DATE OF ORDER:

13 DECEMBER 2021

THE COURT ORDERS THAT:
1.That paragraphs 78 and 81 (together with the annexures thereto) be struck out of the Trial Affidavit of the Wife filed 25 October 2021.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Baldoni & Baldoni is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION

The proceedings relate to the division of property between the parties.
The matter was listed for trial commencing 16 November 2021 with a time estimate of five days. The trial however did not proceed for a range of reasons. The trial is now listed to commence on 4 April 2022, with a time estimate of…

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 Baldoni & Baldoni

Details

AGLC: Baldoni & Baldoni [2021] FedCFamC1F 289
Case: [2021] FedCFamC1F 289
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the court heard an objection by the husband to two audio recordings that the wife sought to introduce as evidence in their property settlement proceedings. The husband objected to the recordings on the basis that they were obtained in contravention of the Surveillance Devices Act 2007 (NSW) and therefore should be excluded from evidence under section 138 of the Evidence Act 1995 (Cth). The court considered the objections and found that both recordings were obtained without the husband's consent and therefore in breach of the SDA. However, the court also considered the probative value and importance of the recordings in the context of the overall evidence before the court. The court found that the recordings had low probative value and were not important in the context of the overall evidence before the court, and therefore excluded the recordings from evidence. Additionally, the court found that the second recording was inadmissible on the basis that it was hearsay and had not been properly sworn to by the person who made the recording.

Orders