Cadenet and Behrendt (No 2) - [2019] FamCA 748

FAMILY COURT OF AUSTRALIA

CADENET & BEHRENDT (NO. 2)

[2019] FamCA 748

FAMILY LAW – EVIDENCE – Admissibility of evidence – Mother alleges father accessed images and digital movies in part of a pornographic nature and while in the care of the child – Father alleges mother improperly and/or illegally obtained the material and denies viewing while in the care of the child – Whether s 138 of the Evidence Act 1995 (Cth) pertaining to the exclusion of improperly or illegally obtained evidence applies – Whether the images and digital movies should be assessed by the Single Expert or paraphilic expert – whether relevant material sufficiently identified by mother – whether further steps necessary before applications can be determined.

Family Law Rules 2004 (Cth) r 17.02
Evidence Act 1995 (Cth) s 138

APPLICANT:

Ms Cadenet

RESPONDENT:

Mr Behrendt

INDEPENDENT CHILDREN’S LAWYER

Mark Whelan Lawyer

FILE NUMBER:

SYC

7807

2016

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

11 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong of Counsel

SOLICITOR FOR THE APPLICANT:

Avondale Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Stolier of Counsel
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mark Whelan Lawyer

Orders

The outstanding applications listed before the Court on 11 October 2019 be stood over to 29 October 2019 at 10:00am for further hearing.
The legal representatives of the parties are to confer within seven (7) days to prepare a joint schedule specifying which images or digital movies included in any of the schedules produced in accordance with the order made on 10 April 2019 are asserted by either party to be relevant, with such schedule to indicate clearly in each case the basis for the assertion.
Any images or digital movies derived from the “Computer” are to be excluded from the preparation of the schedule referred to in order 2 of these orders.
In respect of each item on the jointly prepared schedule, the parties are to agree upon a description, and in the absence of agreement each party is to set out, in a separate column, a description for which that party contends.
By no later than 4:00 pm on 25 October 2019 the spouse parties are to submit a copy of the schedule to the Independent Children’s Lawyer.
Pursuant to r 17.02(1)(h) of the Family Law Rules 2004 (Cth), the word “Annually” be deleted from order 4(a) of the orders dated 10 April 2019.
All questions of costs be reserved NOTING that consideration will be given to making a cost order on the next occasion.

THE COURT NOTES THAT
(A)On the adjourned date, in addition to the issue of material relied upon by the mother in support of her contentions concerning an alleged compulsive feature of the father’s psychology, there remains to be determined the issue of whether the child’s time with the father is to be expanded or…

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 Cadenet and Behrendt (No 2)

Details

AGLC: Cadenet and Behrendt (No 2) [2019] FamCA 748
Case: [2019] FamCA 748
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the matter of *Cadenet and Behrendt (No 2)*, Harper J of the Family Court of Australia considered applications by the parties concerning the disclosure and relevance of digital material in family law proceedings. The dispute centred on the identification and preparation of a schedule of images and digital movies to be relied upon by the parties, with specific exclusions and requirements for description.

The court was required to determine the process for identifying relevant digital evidence, particularly images and digital movies, and to establish a framework for their description and submission. A key issue was the exclusion of material derived from a specific "Computer" from this process. The court also needed to address the timing of further hearings and the preparation of documentation for the Independent Children’s Lawyer.

Harper J ordered that outstanding applications be adjourned for further hearing. The parties were directed to confer and prepare a joint schedule identifying images and digital movies asserted as relevant, specifying the basis for each assertion, and excluding material derived from the "Computer". The schedule was to include agreed descriptions or, in the absence of agreement, separate contentions from each party. This schedule was to be submitted to the Independent Children’s Lawyer by a specified date. Furthermore, the court amended a previous order by deleting the word "Annually" from a specific provision, and all questions of costs were reserved for future consideration. The court noted that on the adjourned date, in addition to the issue of material concerning the father's psychology, the court would determine whether the child's time with the father should be expanded or decreased.

Orders

Orders of the court

The outstanding applications listed before the Court on 11 October 2019 be stood over to 29 October 2019 at 10:00am for further hearing.

The legal representatives of the parties are to confer within seven (7) days to prepare a joint schedule specifying which images or digital movies included in any of the schedules produced in accordance with the order made on 10 April 2019 are asserted by either party to be relevant, with such schedule to indicate clearly in each case the basis for the assertion.

Any images or digital movies derived from the “Computer” are to be excluded from the preparation of the schedule referred to in order 2 of these orders.

In respect of each item on the jointly prepared schedule, the parties are to agree upon a description, and in the absence of agreement each party is to set out, in a separate column, a description for which that party contends.

By no later than 4:00 pm on 25 October 2019 the spouse parties are to submit a copy of the schedule to the Independent Children’s Lawyer.

Pursuant to r 17.02(1)(h) of the Family Law Rules 2004 (Cth), the word “Annually” be deleted from order 4(a) of the orders dated 10 April 2019.

All questions of costs be reserved NOTING that consideration will be given to making a cost order on the next occasion.

THE COURT NOTES THAT

(A) On the adjourned date, in addition to the issue of material relied upon by the mother in support of her contentions concerning an alleged compulsive feature of the father’s psychology, there remains to be determined the issue of whether the child’s time with the father is to be expanded or decreased.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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