Cadenet and Behrendt (No 3) - [2019] FamCA 827

FAMILY COURT OF AUSTRALIA

CADENET & BEHRENDT (NO. 3)

[2019] FamCA 827

FAMILY LAW – CHILDREN – Mother alleges father accessed images and digital movies of a pornographic nature whilst caring for the child – Father denies allegations.

FAMILY LAW – EVIDENCE – Admissibility of evidence – Father alleges mother improperly obtained the material – Whether s 138 of the Evidence Act 1995 (Cth) pertaining to the exclusion of improperly obtained evidence applies – whether relevant material sufficiently identified by mother – Whether the images and digital movies constitute fetishistic pornography of concern and should be assessed by the Single Expert.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 69ZM, 69ZN, 69ZQ(1)(a), 69ZX(1)(d)
Family Law Rules 2004 (Cth) rr 1.09(b), 15.46(d)
Evidence Act 1995 (Cth) ss 55(1), 56(1), 138

Banks & Banks [2015] FamCAFC 36
Britt & Britt [2017] FamCAFC 27
Cadenet & Behrendt (No. 2) [2019] FamCA 748
IMM v The Queen (2016) 330 ALR 382
Smith v The Queen (2001) 206 CLR 650
R v Chanthovixay [2004] NSWCCA 285

APPLICANT:

Ms Cadenet

RESPONDENT:

Mr Behrendt

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

SYC

7807

2016

DATE DELIVERED:

27 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

29 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ginges

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

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

Within 7 days of these Orders the parties provide the Independent Children’s Lawyer (“ICL”) with:
(a) An agreed letter of instruction to Dr B: (“Letter of Instruction”);
(b) The agreed joint schedule of images and videos, together with a USB containing those images and videos, comprising the remaining material as identified in this judgment, but excluding any items of unknown provenance (together “the Material”);
The ICL shall, within 7 days of receipt of the Material and Letter of Instruction, provide them to Dr B, together with a copy of this judgment.
Dr B shall provide an interim report informing the Court as soon as practicable after receipt of the Letter of Instruction and Material whether he considers it necessary for a paraphilia expert (or expert in another related discipline) to be engaged before he can prepare an updated Family Report.
(a) In the case that Dr B recommends to the Court that an expert in paraphilia (or other such discipline) should be appointed, then within 14 days of the Court notifying the parties, the ICL and the parties shall co-operate in preparing a letter of instruction to such an expert together with the ICL instructing and providing that expert with a copy of the Material.
In furtherance of Dr B preparing an updated Family Report, the parents shall each co-operate with Dr B in making themselves available for further interviews as Dr B may reasonably request.
The cost of Dr B’s updated Family Report, together with any other expert engaged as set out in order 3(a), is to be paid equally by the parties.
In relation to the question of costs:
(a)       The father file and serve written submissions in respect of the mother’s Further Amended Application in a Case filed on 13 March 2019 (“the Application”) by no later than close of registry filing 14 days from the date of these orders.
(b)       The mother file and serve written submissions in respect of the Application by no later than close of registry filing 14 days thereafter.
(c)       The father file and serve any written submissions in reply in respect of the Application by no later than close of registry filing 7 days thereafter.
The proceedings are listed for mention at 10:00am on 17 December 2019.

NOTATIONS

The Court expects the parties to be in a position to advise on the progress of the preparation of any further expert evidence, and to provide proposals for the further progress of the matter to final hearing.

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: SYC 7807 of 2016

Ms Cadenet

Applicant

And

Mr Behrendt

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings concerning the child X, born in 2011 (“the Child”). This judgment concerns competing Interlocutory Applications by his parents. For the purposes of this judgement it is unnecessary to set out the procedural history in great detail.
The mother filed a Further Amended Application in a Case on 13 March 2019. Stated summarily her Application concerns a number of digital images and movies derived from three computer devices. The mother contends that this material demonstrates that the father suffers an addiction to highly sexualised or pornographic images. She further contends that an expert opinion should be obtained in relation to this material and its possible impact on the assessment of the father’s parenting capacity.
By his third Further Amended Response to an Application in a Case filed 4 October 2019, the father seeks an order for the mother’s Application to be dismissed, for orders increasing the time he currently spends with the child and an order for costs in his favour.
The competing applications first came before the Court on 10 April 2019. They were then adjourned to 11 October 2019 for hearing.
These reasons for judgment should be read with my judgment Cadenet & Behrendt (No. 2) [2019] FamCA 748 delivered 11 October 2019 which provides some relevant history. I will quote from that judgment as necessary.
At paragraphs [4] – [8] of Cadenet & Behrendt (No. 2) I described the history as follows:
4. 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.
7. 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.
8. 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.
Orders were made on 11 October 2019 for the preparation of more refined schedules, which removed duplicates and excluded any material derived from a Computer device. The reasons for the removal of this latter material are set out in Cadenet & Behrendt (No. 2). The applications were then adjourned to 29 October 2019, part heard.
These reasons for judgment do not deal with that part of the father’s response seeking orders for the child to spend more time with him. The argument before me on 11 and 29 October 2019 did not address these orders. That part of the father’s application remains to be determined, if the father chooses to press it. It was clear that the decision concerning expert evidence the subject of this judgment could affect the outcome of the father’s application for more time with the child.
To recap slightly, the genesis of the mother’s application lies in comments found in the Expert Report dated 11 May 2018 by Dr B who had been appointed as a single expert in the proceedings to prepare a Family Report. At page 25 of the report under the heading “K whether the child is at risk of being exposed to any physical or psychological harm…” Dr B comments 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’ 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. (emphasis added)
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.
Finally, it is also my view that the material needs to be viewed to exclude the presence of materials involving children, which if present would raise threshold of concern higher yet. This may constitute a criminal offence and for the purpose of the Family Court, it would probably dictate a significant curtailment of Mr Behrendt [sic] time with X, with additional protections being in place.
It can be seen from this excerpt from Dr B's Report that as at May 2018 the mother asserted to Dr B that the father was watching a range of “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” and that she was able “to correlate his viewing of some of this material with time he was in public and other places with X, sometimes around other parents and children.” The father submitted that these were the “preconditions” to be satisfied before any material should be submitted to Dr B or another expert. Whether or not they are correctly characterised as “preconditions”, I accept that these were the criteria Dr B pointed to in his Report as having the potential, if they were established, to raise concern about the behaviour of the father.
It can also be seen that Dr B identified the volume, pattern of viewing and range of material as likely relevant criteria for determining whether sexualised images or digital movies may be a source of concern, particularly the possibility that the father may view such material in inappropriate places and while supervising the child indicating “a degree of compulsion or addiction which competes with attending to X’s needs which requires treatment”.
For simplicity, I will refer to the type of material said by Dr B to potentially cause concern as “fetishistic pornography”. It is important to observe here that the features identified by Dr B as justifying the description “fetishistic pornography” were “S & M bondage, fisting etc.”

Material Relied Upon by the Parties

The mother relied upon:
a)Her Case Outline;
b)Her Further Amended Initiating Application in a Case filed 13 March 2019;
c)Her Affidavit sworn and filed 4 October 2019;
d)Affidavit of Mr D sworn 31 March 2019 and filed 9 April 2019;
e)Her Notice of Risk filed 7 February 2017;
f)Expert Report of Dr B dated 11 May 2018; and
g)The schedules of material prepared by the parties in accordance with orders made 10 April 2019.
The father relied upon:
a)His Third Further Amended Response to an Application in a Case filed 4 October 2019;
b)His Affidavit sworn and filed 4 October 2019;
c)Affidavit of Ms C sworn 2 October 2019 and filed 4 October 2019;
d)The schedules of material prepared by the parties in accordance with orders made 10 April 2019.
In addition, the parties produced three schedules in accordance with the Orders made on 11 October 2019. These underwent some further refinement during the course of the day on 29 October 2019 and then became Exhibits “A”, “B” and “C”.
It is relevant to note that on 28 October 2019 the mother filed a further Affidavit. No direction had been made permitting this to be done. The father objected to the Court receiving the evidence in the Affidavit on the basis it contained material to which he should be able to respond. The Independent Children’s Lawyer also had not had time to consider the content of the Affidavit. Ultimately, the mother did not seek an adjournment and the other parties pressed for the Applications to be heard and determined. I acceded to this approach. I rejected paragraphs 13 to 22 of the Affidavit. Paragraph 13 exhibited some photographs as “C-01”. These were tendered separately and I have had regard to them.
The father also filed an Affidavit on 28 October 2019, again without any direction permitting fresh evidence. The mother objected. Senior counsel for the father read only paragraphs 7, 8 and 9 of this Affidavit, as an aide memoire.
The original schedules produced by the parties, referred to in Cadenet & Behrendt (No. 2) and [6] above, suggested that there may have been up to 5,000 items which the mother says were stored on computer devices and which she downloaded. The schedules which became Exhibits “A”, “B” and “C” reduced the number considerably, to slightly in excess of 1,000. By the time the hearing resumed after lunch on 29 October 2019 it was agreed that the material upon which the mother relied also excluded any images involving the father’s current partner, Ms C, together with a number of other agreed items.
Consequently, the remaining material amounted to approximately 400 digital images together with a number of digital movies (referred to as “videos” in Exhibits “A”, “B” and “C”). The precise number of these was unclear but it exceeded 50. There were several other items the provenance of which was unclear. I will refer to this material collectively as “the remaining material”.
A bundle containing a sample of the images from the remaining material, upon which the mother relied, was tendered by consent and became Exhibit “D”.
Counsel for the mother provided a proposed final form of order sought by her after lunch on 29 October 2019. This document was marked “MFI 1”, because counsel indicated some small proposed changes, after consulting counsel for the Independent Children’s Lawyer.
The final form of the order sought by the mother was submitted to chambers on 30 October 2019 and was marked Exhibit “E”. The orders sought by the mother are as follows:
Updating material to Dr B
1.Within 7 days of these Orders the parties provide the Independent Children’s Lawyer (ICL) with:
a.An agreed letter of instruction to Dr B: (Letter of Instruction);
b.The agreed joint schedule of images/videos, together with a USB containing those images and videos (together the Material);
2.The ICL shall, within 7 days of receipt of the Material and Letter of Instruction, provide them to Dr B.
3.Dr B shall inform the Court as soon as practicable after receipt of the Letter of Instruction and Material whether he considers it necessary for a paraphilia expert (or expert in another related discipline) to be engaged before he can prepare an updated Family Report.
a. In the case that Dr B recommends to the Court that an expert in paraphilia (or other such discipline), then within 14 days of the Court notifying the parties, the ICL and the parties shall co-operate in preparing a letter of instruction to such an expert together with the ICL instructing and providing that expert with a copy of the Material.
4.In furtherance of Dr B preparing an updated Family Report, the parents shall each co-operate with Dr B in making themselves available for further interviews as Dr B may reasonably request.
5.The cost of Dr B’s updated Family Report, together with any other expert engaged as set out in order 3(a), to be paid equally by the parties.
Trial timetable
6.The parties to file and serve their trial affidavits and financial statement by Friday 20 December 2019. The ICL is to provide copies of the parties’ trial affidavits to Dr B.
7.By 31 January 2019, the parties are to prepare a joint balance sheet.
8.Matter listed for further directions before Justice Harper on …

Consideration

The mother did not point to any specific power in the Family Law Act 1975 (Cth) (“the Act”) or the Family Law Rules 2004 (Cth) (“the Rules”) to support the order she proposed. No submission was made that the Court lacked jurisdiction or power. There are a number of available sources in my view.
In the Act, Division 12A of Part VII applies to child-related proceedings, which the substantive proceedings are (s 69ZM(2), (3) and (4)). Therefore the principles, set out in s 69ZN, for conducting child-related proceedings apply. These include consideration of the needs of the child and the impact of the proceedings (s 69ZN(3)), the requirement for the Court to actively direct, control and manage the conduct of the proceedings (s 69ZN(4)) and to conduct the proceedings in a way to safeguard a child from being exposed to abuse. The Court, in giving effect to the principles in s 69ZN, has a duty under s 69ZQ(1)(a) to decide which issues require full investigation and hearing, and under s 69ZX(1)(d) a duty to give directions or make orders about the matters in relation to which an expert is to provide evidence.

In the Rules, there is the general power in Rule 1.09(b) to make such orders as the Court considers necessary where a difficulty has arisen about a matter of practice or procedure and under Rule 15.46(d) the Court can determine any issue in dispute between the parties to ensure clear instructions are given to an expert.
It was the unanimous position of the parties that the orders sought in the competing applications met the definition of “parenting order” in s 64B(1) of the Act. Certainly the father’s proposed orders for more time with the child would fall within s 64B(2)(b) “the time a child is to spend with another person…” Reasonable minds may differ upon whether the mother’s proposed orders for the submission to an expert of the remaining material, said to be “fetishistic pornography”, are parenting orders. They could be said to fall within the words “any aspect of the care, welfare or development of the child” (s 64B(2)(i) of the Act). However, no argument was directed to this question. I will proceed on the position agreed between the parties.
Several important consequences flow if I am dealing with applications for parenting orders. First, the best interests of the child are the paramount consideration (s 60CA of the Act). Secondly, in determining the best interests of the child the primary and additional considerations in s 60CC must be considered. Following the Full Court decision in Banks & Banks [2015] FamCAFC 36 at [47]-[50], although I have considered each of those statutory matters, I will limit my discussion to those issues which, in the best interests of the child, require determination prior to trial, based upon the facts and issues joined by the parties, and their submissions, in the hearing before me. Thirdly, the presumption of equal shared parental responsibility in s 61DA(1) of the Act applies unless the Court considered its application inappropriate when making interim orders (s 61DA(3)). The competing applications are interim applications and concern evidence alleged to bear upon the parenting capacity of the father. I consider it clearly inappropriate for the presumption to apply. No party submitted that it should.
The mother bore the onus of establishing the basis upon which orders should be made for the submission of the remaining material to Dr B or another expert. She contends that the remaining material satisfied the description set out by Dr B in his report as “fetishistic pornography”. She also argued that the evidence established that the father likely viewed this material inappropriately in public places and while he was caring for or supervising the child. She also relied upon the volume and range of material, aspects to which Dr B adverted.
Clearly, an important question is whether the remaining material could be said to fall within the expression “fetishistic pornography”. The exact ambit of this expression cannot be stated with any certainty. However, the characteristics specifically referred to by Dr B included “S & M, bondage, fisting”. I will use those criteria for the purposes of this judgment.
It is important to remember the evolution of the mother’s allegations about the father. She first alleged to Dr B in May 2018 that she was able to correlate the viewing of fetishistic pornography by the father in public places when he was supervising the child. I asked counsel for the mother to point to the evidence which formed the basis for her allegations at that time bearing in mind the only material shown to Dr B were four photographs of the father “fisting” Ms C. As noted above, the mother on 29 October 2019 agreed to exclude any images involving Ms C as irrelevant.
Apparently the mother exhibited some images to an Affidavit sworn 3 February 2017 as “C-1”, seen by her on an Apple iMac in November 2015. This Affidavit was not read in evidence by the mother before me. However, senior counsel for the father tendered paragraph 13 of that Affidavit in which the mother stated “I was looking in horror at my husband engaging in sexual activity with a stranger when the phone rang.” She gave no further description of the images in paragraph 13. She also states, and it was undisputed, that the child briefly saw some of these images.
It should be remembered that the mother consented, on 8 February 2017, to orders that the child spend unsupervised time with the father.
The mother returned to the November 2015 images in her Affidavit sworn 28 October 2019. At paragraph [3], she gave an extensive description of “approximately 30 to 40 photographs” which included, for example, the father engaging in “violent sexual activity of “fisting” with a stranger(s)”; “erotic images of people with cuts on their arms and upper thighs” and “erotic images primarily of women in bondage and S&M fetish accessories, many of whom were naked or primarily naked”. It is clear that these descriptions vastly expand the nature and number of the November 2015 images given by the mother in paragraph 13 of her Affidavit sworn 3 February 2017.
Apart from the four images shown to Dr B, none of the other November 2015 images formed the basis of his opinion in his May 2018 Report.
I am not satisfied that the mother has demonstrated a basis as at May 2018 to make her allegations to Dr B. The father submitted that the mother’s contention concerning the sexualised material changed over time. There is force in this submission. The considerable divergence between the limited description of the images in paragraph 13 of her Affidavit sworn 3 February 2017 and the description in paragraph 3 of her Affidavit sworn 28 October 2019 Affidavit drives me to treat the descriptions in that paragraph with caution. It was also accepted before me that many of the November 2015 images were actually of Ms C, so now agreed to be irrelevant.
Exhibit “C-01” was comprised of seven images of women in what may be called sexualised poses together with screenshots of “meta data” properties for each image. It also contained some unremarkable images of the child taken by the father, together with “meta data” properties for each image. The mother contended that the “meta data” showed that each sexualised image had been viewed by the father at the same time he was photographing the child at a swimming pool. On the face of these documents, it appears the images may have been viewed by the father on the dates and at the times he was caring for the child. The mother did not demonstrate any of this material was available as at May 2018, but in any event it was not shown to Dr B so it could not have formed the basis of his expression of opinion.
Furthermore, it is certainly not self-evident that any of the images comprising Exhibit “C-01” should be said to fall within the expression “fetishistic pornography” as used by Dr B. All of them appear to be images of women in sexualised poses. None of them appear to exhibit the features of “S & M, bondage, fisting etc.” Many appear to be little different from images which regularly appear in a variety of advertising material in magazines and even on television.
I accept the father’s submission that the mother has not demonstrated, at an interlocutory stage, that any images of the type identified by Dr B as fetishistic pornography were ever viewed in public places by the father whilst the child was in the father’s care. I am satisfied that the mother has been unable to point to evidence which would have justified her assertions to Dr B in May 2018 that she could correlate the viewing of fetishistic pornography by the father at times when he was in public and supervising the child, nor at any date thereafter. Moreover, the concerns said to underlie her present Application sit in some tension with her agreement in February 2017 for the child to spend unsupervised time with the father.
I am satisfied the mother’s approach to presentation of the evidence upon which she relied for her allegations, first made to Dr B and as presented in the first schedules, involved considerable exaggeration and some indifference to the accuracy of what she alleged, particularly since she now agrees images of Ms C are irrelevant. Significant Court time was wasted before the mother truncated the amount of material said to be of concern, and the remaining material represents a marked reduction in the volume of images the mother initially relied upon.
For completeness I also add that none of the images were, or were said to be, of an “incontrovertibly inappropriate nature such as exploitative activities involving children.”
However these conclusions do not dispose of the mother’s Application.
There was debate between the parties concerning the appropriate description of the images in the remaining material, putting to one side the digital movies. The father adopted the description “fashion images”. Exhibit “D” gives a flavour of the nature of some of the images. They almost all contain female nudity. However none, or very few, appear to possess any features of fetishistic pornography, in particular, “S & M, bondage, fisting etc”. Nonetheless, the mother disputed the father’s characterisation contending that they were “pornography” being of a more sexualised nature than such the description “fashion images” would suggest. In her 28 October 2019 Affidavit, for example (paragraph 24), the mother suggests images depicting females dressed in lingerie may “consist of S&M bondage themes” and do not “innocently promote fashion”. This difference of view exposes a central problem in the nature of the debate between the parties. Their respective descriptors of the examples from the remaining material simply reflect their own subjective perceptions. It is unclear at what point a given image is “fashion” or goes beyond “fashion” or embodies an “S&M bondage theme”, whatever that is. It is likely each party has exaggerated their description to one extreme or the other.
I am not persuaded that a label, such as “fashion images”, “S&M bondage theme” or pornography applied to the remaining material by one or other party, or the Court for that matter, is very helpful.
As the Independent Children’s Lawyer submitted, neither the Court nor the parties possessed any relevant expertise to enable an assessment of whether the remaining material constituted a concern in relation to the father spending time with the child, which is the real question.
On the other hand the remaining material exists. The father argued that none of the remaining material could satisfy the description of fetishistic pornography and since there was no evidence any of it had met the other criteria for concern expressed by Dr B, namely, viewing by the father in inappropriate public places and while the child was in his care, it was all irrelevant. I do not accept this argument.
Irrespective of my conclusions about the mother’s exaggeration and lack of a basis for her assertions to Dr B in May 2018, the digital images involve nudity, they run to the hundreds in number, and there is no dispute that among digital movies identified in Exhibit “B” a number portray sexual activity including bondage and role-playing including domination. Without expressing any final view, I accept these might possibly meet Dr B’s description as fetishistic pornography. Furthermore, Dr B pointed to the range of material and volume as criteria which might lead to a conclusion that the material was of concern.
The Independent Children’s Lawyer submitted that on its face the remaining material appeared to be relevant and the appropriate course was for the remaining material to be submitted to Dr B for him to express a view as to whether it constituted a basis for concern. I agree.
To explain my reasoning, it is necessary to consider provisions of the Evidence Act1995 (Cth) (“the Evidence Act”).
To repeat, on its face, and it was undisputed, the remaining material contains a large number of digital movies of a sexualised or pornographic nature which involved bondage and sexual violence to some degree.
The definition of relevance set out in s 55(1) of the Evidence Act is “evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.” Section 56(1) of the Evidence Act provides that “Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.”
In IMM v The Queen [2016] HCA 14; 257 CLR 300 at [40] the High Court made clear that by a combination of ss 55 and 56 “Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law”. In Smith v The Queen (2001) 206 CLR 650 at [45] Kirby J pointed out that courts give the definition of relevance a broad interpretation because, by reason of s 56, evidence that is not relevant is inadmissible.
The Full Court in Britt & Britt [2017] FamCAFC 27; [2017] FLC 93-764; (2017) 56 Fam LR 52 (“Britt”) said at [31] “Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value”.
The Full Court continued at [34] and [35]:
In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
Evidence is capable of being relevant to an issue if it puts other evidence into context, such as explaining the nature of the relationship in which other events occurred.
The Full Court also pointed out that there is a difficulty in determining that evidence is irrelevant at an early stage in a final hearing. In Britt (supra) at [43] and [44] the Full Court pointed out:
The difficulty in undertaking this consideration at the early stage of a hearing is that at that point the evidence is not yet complete. As we have explained, in coming to a conclusion that a fact or proposition is established, the court must have regard to all of the evidence. The danger in undertaking such a consideration when determining the admissibility of evidence is that there will be a focus on whether a particular piece of evidence, as opposed to all of the evidence, is capable of establishing the fact or proposition.
There is a second difficulty. A determination, at the threshold of the hearing, that evidence is irrelevant because the fact or proposition contended for cannot be established must be undertaken cautiously and carefully. This is because such a consideration is, in effect, a summary determination of that issue. Accordingly an approach similar to summary dismissal applies and the evidence should only be rejected if there is no reasonable likelihood of the fact or proposition being established (to use the words of r 10.12(d) of the Family Law Rules 2004 (Cth)). The need for caution with respect to the summary dismissal of matters was identified in Lindon v The Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 255-256.
The comments of the Full Court in Britt (supra) cited above were made in the context of a decision concerning property orders and about the receipt of evidence at final hearing. On the other hand, the present proceedings have not reached final hearing. The mother’s application is made in the context of a parenting dispute and is, at least in part, procedural for the purposes of the evidence gathering processes leading up to trial. By reason of the application of Division 12A of Part VII of the Act, and in particular s 69ZT of the Act, there is greater latitude in the admissibility of evidence in proceedings where parenting orders are sought.
Despite these differences, the reasoning in Britt (supra), set out above, has obvious application, in my view. The test of relevance must be satisfied in all cases. The father’s argument raised the question of relevance and admissibility at an interlocutory stage. In my view, the Full Court’s comments in Britt, concerning the difficulty of determining the relevance of particular evidence before the evidence is complete, apply with greater force when the relevance of evidence is put in question during the interlocutory period, while evidence is still being gathered by parties and expert opinion is being sought in respect of some of it.
Furthermore, the use of the word “could” in s 55 has led to the view that even an indirect connection with a fact in issue can render evidence admissible: R v Chanthovixay [2004] NSWCCA 285 at [34]. On one view the remaining material could be characterised as circumstantial. Circumstantial evidence which proves the existence of a fact from which inferences regarding the existence of a fact in issue can be relevant for this reason. The mother made a number of submissions adverting to the circumstantial nature of the remaining material, contending that it may prove facts which then lead to enquiry about, and the proof of, other facts. She argued she simply does not know what other concerning material the father may have viewed. This may turn out to be a weak argument which leads nowhere, as the father contended, but it is not possible to decide this at present. The remaining material’s relevance may be established ultimately because it helps put other evidence in context.
Whether the existence of the remaining material, which was likely downloaded and viewed by the father, may help support a conclusion at final hearing, adverse to a positive assessment of the father’s parenting capacity, I do not know. However it seems to me that the possibility cannot be ruled out now. In an application for parenting orders where the child’s best interests are paramount, and where the Court has a duty to consider the needs of the child in making orders, I am not satisfied that the remaining material can simply be ignored as irrelevant. A central question in the proceedings is the time to be spent by the child with his father. In my view the remaining material may rationally affect the assessment of the probability of the existence of facts in issue bearing on that question.
Accordingly, the Court is simply not in a position to form a view, for the purpose of determining the mother’s interlocutory application, that the remaining material is irrelevant.
This conclusion makes it necessary to address the further argument of the father in reliance on s 138 of the Evidence Act.

S 138 of the Evidence Act

Section 138 of the Evidence Act is in the following terms:
Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

No party directed any submissions to the import of the words in s 138(1) “not to be admitted”. On one view those words may suggest that s 138 has application only at the point at which evidence is adduced at final hearing. If limited in that way it may not of itself operate to exclude evidence at an interlocutory stage, or prevent or preclude the submission of factual material to an expert witness. However, I will assume that s 138 can operate to do so.
The argument then is that if the remaining material falls within the exclusionary words of s 138(1) it should not be provided to an expert prior to trial because it would ultimately be inadmissible at trial and should not be employed as the basis for factual assumptions upon which an expert could rely in forming any opinion. In other words, if the remaining material is not to be admitted at trial by reason of s 138 it would not be permissible to submit the remaining material to an expert witness prior to trial.
The father did not contend that the remaining material had been illegally obtained. He argued that the material was improperly obtained because on no view of the evidence did the mother have his consent to access any of the devices from which the remaining material was obtained.
However I do not consider it necessary to determine this question for the purposes of this judgment.
This is because I am satisfied that at this stage of the proceedings and on the evidence before me it is not possible to form a clear view whether the remaining material is so tainted by either impropriety or being improperly obtained as to fall within s 138 of the Evidence Act.
But even if I am wrong about that and it was so tainted, it would be necessary to consider further whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence, by reference to the discretionary considerations set out in s 138(3) of the Evidence Act. It is not possible to form a view about this question at an interlocutory stage either.
It is only necessary to refer specifically to s 138(3)(a) and (b) by way of example.
Section 138(3)(a) requires an assessment of the probative value of the evidence. Logically, a conclusion that it is more desirable to admit particular evidence, based upon its probative value, would require an anterior conclusion that it has some or significant probative value. Conversely, a conclusion that the undesirability of admitting the evidence outweighs the desirability of doing so, would require the anterior conclusion that the evidence has limited, little or no probative value. The father relies upon this latter proposition.
In the Dictionary to the Evidence Act, “probative value” is defined to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. This definition obviously overlaps with the definition of relevance.
Clearly an assessment of the probative value of either direct evidence of a fact in issue or even circumstantial evidence which, by inference, could support the proof of a fact in issue, may in a given case result in the probative value of the evidence being sufficiently significant to justify it being admitted in the exercise of discretion under s 138(3)(a).
But for the same reasons that it is not presently possible to form a definitive view about the relevance of the remaining material, it is difficult to weigh its probative value at this stage. An assessment of the probative value of the remaining material depends, substantially if not entirely, upon an estimation of its value relative to the other evidence relied upon by the parties and to some extent upon the expression of an expert view by Dr B about its significance. As the Full Court said in Britt (supra) at [49] “a piece of evidence may assist with the value of other evidence”. However, it is not possible on the present evidence, and at this stage of the proceedings, to form the view that the remaining material has no probative value, or form a view about its relative value in a probative sense in light of the other evidence in the case.
I note in passing that for all the same reasons it is not possible at present to form a view about the importance of the remaining material in the proceedings: s 138(3)(b) of the Evidence Act.
Accordingly, I do not accept the father’s argument based on s 138 of the Evidence Act.
The mother also made reference to the fact that the proceedings are already three years old, there have been multiple interim applications and the burden on the child remains significant. All parties including the Independent Children’s Lawyer press the Court for directions to prepare the matter for final hearing with a mention date later in the year to allocate final hearing dates in 2020. There is considerable attraction in these submissions. However the claims of this case upon the judicial resources of the Court must be weighed against the claims of the numerous other cases awaiting hearing. It must be said that if all parties focussed upon preparing for final hearing and avoided multiple interim applications, it would free up judicial time and permit more cases to be dealt with promptly.

Conclusion

Having carefully weighed the evidence and the submissions of the parties I have formed the view that the remaining material should be submitted to Dr B for him to express a view as to whether any of it in his expert opinion should be viewed as a matter of concern. Whether anything further is then done with the remaining material will depend upon the opinion expressed by Dr B.
There remains outstanding the father’s Application to spend additional time with the child. That application cannot be dealt with until the question of the remaining material has been subject to the expression of expert opinion by Dr B.
There is also the question of the costs of 11 October 2019 and 29 October 2019. I will make orders for the preparation of written submissions on those questions.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 27 November 2019.

Associate:

Date: 27 November 2019