Cadenet and Behrendt (No 2)
[2019] FamCA 748
•11 October 2019
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 | of | 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 decreased.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadenet & Behrendt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7807/2016
| Ms Cadenet |
Applicant
And
| Mr Behrendt |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
These reasons were delivered ex tempore and corrected for literal and grammatical errors.
In proceedings SYC7807/2016 there were listed before me on 11 October 2019 competing applications by the mother and the father of the child, X, born in 2011.
Stated summarily, those applications concern the mother’s application concerning images and digital movies said to be, at least in part, of a pornographic nature, and the father’s resistance to that application; applications by the father to spend more time with the child; and the mother’s response seeking the father spend less time with the child, and an application to vary an order concerning travel made on 10 April 2019. The most significant area of debate concerned the images and digital movies.
Those images and digital movies came from three identified sources, apart from a few items, the precise source of which was unclear. The vast majority came either from a Desktop, a hard disk and a Computer.
When the matter was before me on 10 April 2019, orders were made by consent for the preparation of a schedule (which became three schedules), the purpose of which was to identify the material the subject of debate, its source and some limited commentary by each of the parties. Schedules were produced and ultimately ran to some hundreds of pages, and purported to identify thousands of items.
In the context of these proceedings, the genesis of the debate concerning the images and digital videos arises out of comments made by Dr B in a report dated 11 May 2018. In particular, at page 25 of this report, Dr B states as follows:
[Ms Cadenet] alleges she has copied a large volume of material from the matrimonial home computer that indicates that over a period of time extending back in [Mr Behrendt’s] first marriage, he was watching a range of what I would describe as fetishistic pornography (S&M bondage, fisting etc.), some of which was downloaded from the internet and some of which reflects self-recorded role plays of similar themes with a partner. She also alleges that she was able to correlate his viewing of some of this material with times when he was in public and other places with [X], sometimes around other parents and children. She indicates that none of the material she saw, which was not everything she downloaded, included images of children. Her concerns about this were twofold. Firstly, she was concerned that [Mr Behrendt] might be indiscreet in the times and places when he looks at these materials such that [X] would be exposed to them. Secondly, she was concerned that his use of these materials when supervising [X] indicated a degree of compulsion or addiction which competes with attending to [X’s] needs which requires treatment.
In my view, if confirmed both of these matters are valid concerns, and there may also be a concern that some of the material that she has downloaded but not viewed may contain material of an incontrovertibly inappropriate nature such as exploitative activities involving children.
The only material which I have seen are the four images annexed to [Ms Cadenet’s] affidavit, which collectively appear to depict an incident of fisting with his now partner [Ms C] in the marital home prior to the separation. In my view a more comprehensive appraisal of the materials [Ms Cadenet] retains needs to be undertaken. If the materials which [Ms Cadenet] had downloaded from the computer do not go beyond a moderate volume of the type of material she annexed to her affidavit (such as including S&M, fisting and bondage), and he was not viewing it when [X] was in the vicinity, then one may take the view that this represents a rather offensive and humiliating form of infidelity, and that the undertakings that he has made are probably all that is necessary to protect [X], provided he complies with them. I note that [Ms Cadenet] does not believe that [X] has seen any of these materials, nor was any behaviour or language used described concerning [X] which may suggest that he had seen any such material.
Alternatively, if it is the case that the range of the materials is more extensive, the volume is large and the pattern of viewing is at times which includes public venues and when [X] is with him, then this suggests a much more significant issue which may rise to the level of a Paraphilia which he has a compulsion to indulge and which may override any undertakings which he makes [in] the long term, particularly if he is in a relationship with a person who is a willing partner in these activities. Under those circumstances, it would be my view that not only does he need to make undertakings in terms of his Paraphiliac behaviour, but he probably would also need to attend treatment to provide an extra protection against compulsive inappropriate use of stored images, and [X’s] time with him may need to be limited to shorter periods than occur at the moment.
The mother asserts that the material to which she has gained access from the sources nominated above demonstrates a compulsive and addictive feature of the father’s psychology, which directly reflects upon his parenting capacity. The father, for his part, denies this and makes an argument strongly expressed that all the material to which the mother points has been obtained either improperly or illegally so as to fall within the prohibition contained in s 138 of the Evidence Act 1995 (Cth).
When the matter was called on 11 October 2019 and counsel for the parties were invited to make opening comments, two things became apparent. First, it was conceded by the mother that in the three schedules produced pursuant to the orders of 10 April 2019, there was both duplication and the inclusion of separate items, things called “slices”, both of which needed to be excluded from consideration because they, to put it bluntly, created considerable doubling up.
Secondly, it became apparent to the Court that it was not possible, using the existing schedules, to isolate the parameters of exactly what the mother proposed to rely upon in supporting her contentions that the father had an obsessive or compulsive need to view pornography, perhaps at inappropriate times, and whilst the child was in his care.
Accordingly, the matter was stood down to enable the parties to attempt to refine, as far as possible, within the limitations of the day, the area of debate. Some progress was achieved in this regard, but a number of matters remain unresolved. It became apparent that the only practical way to progress the matter was for a further schedule to be prepared, which took account of those items in the existing schedules which could be removed by consent.
In addition, the father argued that all material derived from the Computer should be excluded from consideration in any event, putting to one side any arguments about material being improperly or illegally obtained. The basis for the father’s contention in regard to the Computer is that, on his case, that computer was not accessed by him after a date in 2005, that is, some 14 years ago. The mother does not concede that date, but does concede that the last time the Computer had been accessed was a date somewhere in 2009, that is, about a decade ago.
One of the schedules produced pursuant to the orders of 10 October 2019 was contained in a USB prepared by a company called D Company, who had been engaged by the mother. D Company delivered the USB containing these items on 10 August 2018. According to the father – and these figures do not appear to be in dispute – once account is taken of duplicates and slices, the number of items in the 10 August 2018 USB reduced from 4,326 to 1,292. The father further contended that of the remaining 1,292, 1,175 were derived from the Computer. On those figures, the relevant or potentially relevant material in the USB delivered on 10 August 2018 becomes much more manageable.
The father pressed for a ruling on 11 October 2019 with regard to the material derived from the Computer. The ruling for which the father contended was that all of the images, even those remaining after duplicates and slices were taken account of, should be excluded from any further consideration because on either parties’ version of the last state upon which the Computer was accessed, they could not by relevant.
The ambit of relevance for the purpose of that submission was related by the father to the passages from the report of Dr B which I have set out earlier in these reasons. In particular, the father drew the Court’s attention to the conditional way Dr B expressed his potential concerns, in particular, the possibility that the father may be viewing inappropriate or undesirable material whilst the child was in his care or in public places, so as to suggest there was a far more significant issue, rising to the level of paraphilia, in relation to the father.
On the material before me, it is undisputed that the last time the Computer could have been used was in 2009, which is prior to the birth of the child. It was – quite properly, in my view – conceded by the mother that none of the material downloaded from the Computer could fall within the concern of Dr B of being viewed in public places when the child was in the care of the father.
I take account of the fact that this matter has been in the court list since 2016. The degree of conflict and patent animosity that exists between the parents is not only highly regrettable but must be a great burden to the child. These are parenting proceedings, and the applications before me, in my view, constitute applications at least in part for parenting orders, and the best interests of the child remain the paramount consideration.
The approach to the preparation or presentation of the vast quantities of material, upon which the mother proposes to rely to make her argument concerning obsessive or compulsive aspects of the father’s psychology, must be addressed in a manner which allows the Court to understand exactly what material she points to. The schedules produced in accordance with the orders of 10 April 2019 do not, in fact, assist in that regard at all.
I note that the material the Court was taken to by the father in the course of submissions indicated that he had undertaken the task in his sworn evidence of identifying and characterising the images and digital movies which were said to be potentially relevant or not relevant, on the basis of the existing schedules.
The mother, for her part, submitted that she had attempted to obtain agreement on a further schedule from the father, but that had not been forthcoming. However, it is her assertion that there is a significant issue in relation to this material, and it was her responsibility, in my view, to provide, in the absence of agreement, some sworn evidence which indicated a characterisation of the material so the Court could understand, at least in a preliminary way, what sort of material was being pointed to.
As I understood the submissions of Ms Stolier for the Independent Children's Lawyer, the ICL was also of the view that further steps of a practical nature had to be undertaken in order for the parameters of the material the mother relies upon to be properly identified and understood, not only by the other parties but by the Court.
And given careful consideration to the case outlines of the parties, the affidavit material to which I’ve been taken, and the submissions made on 11 October 2019, I am satisfied that the material which has been derived from the Computer should be excluded from any further consideration, at this stage of the proceedings, at least, when the Court is asked to form a view as to what further material may or may not be appropriately submitted to either Dr B or a paraphilic expert. Beyond that, however, it is not possible at this stage to understand exactly what the parameters of the remaining material are.
Accordingly, I make the orders set out at the commencement of these reasons.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 11 October 2019.
Associate:
Date: 24 October 2019
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