Cadenet and Behrendt (No 3)

Case [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 of 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

  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 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”);

  2. 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.

  3. 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.

  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…

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Details
AGLC
Cadenet and Behrendt (No 3) [2019] FamCA 827
Case
[2019] FamCA 827
Decision Date

CaseChat Overview and Summary

In the matter of Cadenet and Behrendt (No 3), Harper J of the Family Court of Australia considered allegations made by the mother that the father had accessed pornographic images and digital movies while caring for the child, which the father denied. The dispute also involved the admissibility of this material, with the father alleging the mother had improperly obtained it, and the court's consideration of whether section 138 of the *Evidence Act 1995* (Cth) applied to exclude such evidence.

The court was required to determine the relevance and admissibility of the digital material, particularly in light of the father's claims regarding its improper acquisition. A key legal issue was whether the material, described as containing bondage and sexual violence, constituted "fetishistic pornography of concern" and thus warranted assessment by a single expert. The court also had to consider the broad interpretation of relevance under sections 55 and 56 of the *Evidence Act 1995* (Cth), as clarified by High Court and Full Court authorities, and the caution required when excluding evidence at an early stage of proceedings.

Harper J applied the principles of relevance as defined in the *Evidence Act 1995* (Cth), noting that evidence is admissible if it could rationally affect the assessment of a fact in issue, even if only slightly. The court acknowledged that the probative value of evidence should be considered in context and that evidence may be relevant if it explains the nature of a relationship or puts other evidence into context. Given the early stage of the proceedings and the potential for the material to be considered in conjunction with other evidence, the court adopted a cautious approach, akin to summary dismissal, requiring a high threshold for exclusion.

The court made orders for the parties to provide the Independent Children’s Lawyer with an agreed letter of instruction and a joint schedule of images and videos, along with a USB containing the material. The Independent Children’s Lawyer was directed to provide this to Dr B, who was to report on the necessity of engaging a paraphilia expert before preparing an updated Family Report. The parties were ordered to cooperate with Dr B and any further expert engaged, with costs to be shared equally. The proceedings were listed for mention to discuss progress and proposals for further steps.

Orders

Orders of the court

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 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”);

2.

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.

3.

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.

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), is to be paid equally by the parties.

6.

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.

7.

The proceedings are listed for mention at 10:00am on 17 December 2019.

NOTATIONS

8.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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