Feranti and Connor (No. 2)

[2009] FamCA 400

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (NO. 2) [2009] FamCA 400

FAMILY LAW – PRACTICE AND PROCEDURE – Contravention

APPLICANT: Mr Feranti

RESPONDENT: Ms Connor

FILE NUMBER: MLF 10368 of 1994

DATE DELIVERED: 23 February 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 23 February 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Boehm

SOLICITOR FOR THE RESPONDENT: Peter Falconer & Associates

Orders

1. That the applicant father have leave to file an Application alleging Contravention in lieu of the Application alleging Contravention filed on 29 August 2008, the Application alleging Contempt filed on 1 December 2008, and the Application alleging Contravention filed on 15 January 2009.

2. That the Application alleging Contravention filed by the father on 29 August 2008, the Application alleging Contempt filed by the father on 1 December 2008, and the Application alleging Contravention filed by the father on 15 January 2009 be dismissed and removed from the active pending cases list.

3. That count 2(d) and count 11 set out in the Application alleging Contravention filed 23 February 2009 be dismissed.

4. That leave be granted to the father to file a further affidavit sworn on 20 February 2009 in support of his Application alleging Contravention.

5. That paragraph 3 and annexure TF1, paragraph 4 and annexure TF2, paragraph 5 and annexure TF3, paragraph 6 and annexures TF4 and TF5, and paragraph 10 and annexure TF7 of the said affidavit be struck out.

6. That the transcript of the first 25 seconds of the recording of the telephone conversation on 28 December 2008 as set out in annexure TF6 to the affidavit sworn by the father on 20 February 2009 be admitted as part of the evidence in this case.

IT IS NOTED that publication of this judgment under the pseudonym Feranti & Connor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 10368 of 1994

MR FERANTI

Applicant

And

MS CONNOR

Respondent

EX TEMPORE REASONS

1. I propose to receive the father’s affidavit, because I think it is helpful and convenient to do so.  I was surprised that the father had gone to the extent of preparing an affidavit, because I did not require him to do it.  He had the advantage - if I can call it that - of the fact that the mother's affidavit was filed late which meant that he was able to deal with that in the witness box.  This way, with his affidavit, it frankly confines the evidence and is an expeditious way to proceed.

2. In terms of cross‑examination though, Mr Boehm will need to have his client's instructions before he does that, and I will obviously permit that because if I had simply allowed oral evidence there would have been no forewarning of what was in that oral evidence and then Mr Boehm, I am sure, would have asked me for time to get his client's instructions about that.

3. The father has also presented an Application alleging Contravention, which is the application on which he wishes now to proceed.  Previously there were three applications before the court, an Application alleging Contravention filed on 29 August 2008, an Application alleging Contempt filed on 1 December 2008, and an Application alleging Contravention filed on 15 January 2009.

4. Mr Boehm, as I understand it, does not have any difficulties with this application being the one that is proceeded with.  He has raised issues about it which I have dealt with but it seems to me that this is an appropriate way of proceeding now given that all the charges alleged are in the one document, and the father has made the decision not to proceed on any of those charges alleging contempt.  He is comfortable to proceed on the basis that the allegations are all by way of contravention.  That makes it a more straightforward position, and thus I have no difficulty with receiving the application alleging contravention and I will treat it as being filed today and I will dismiss the three other Applications that I have referred to so there is no confusion about what is proceeding.

5. With this application though, I confirm that I propose to dismiss count 11 and count 2(d). 

6. I note that the applicant father still relies on the affidavits filed on 29 August 2008, 1 December 2008 and 15 January 2009, but they are now in support of the application alleging contravention which I have given leave to file and which has now been tendered to me and I have received.

7. I confirm that last week when this case started, I took the father and Mr Falconer, who was representing the mother on that occasion, through those three affidavits and I made rulings on the admissibility of various paragraphs of those affidavits.  I do not need to repeat that.  Nothing has changed about that for the purposes of today.

8. Separate to that, the applicant father has tendered a further affidavit today and, before receiving it, I have explored with the father and Mr Boehm who now appears for the mother, the admissibility of various of the paragraphs of that affidavit. 

9. The affidavit is intended to be in response to the affidavit filed by the mother on 12 February 2009, and in order to ensure that it only deals with paragraphs of the mother's affidavit which are in themselves admissible, I have also taken the opportunity to take the father and Mr Boehm through those paragraphs of that affidavit that the father is responding to and identified paragraphs or parts of paragraphs that I will not receive either as being inadmissible or no longer relevant to the issues that I have to determine.

10. I must say that I did not complete that exercise totally in that I have not considered each and every paragraph of the mother's affidavit.  It is for the father at an appropriate time to tell me if he has any other objections to any of the paragraphs of that affidavit prior to the mother giving her evidence.  As I say, what I have dealt with is those paragraphs of that affidavit of the mother's which the father has sought to respond to in this affidavit received today.

11. That said, can I identify though one issue which Mr Boehm needs to take instructions on, and that relates to paragraph 9.5 of the mother's affidavit filed on 12 February 2009.  That responds to paragraph 5 of the father's affidavit filed on 15 January 2009.

12. The difficulty which has arisen is that the mother refers to and annexes a letter to the father from the independent children's lawyer, which is dated 22 December 2008, yet the particular allegation that the mother is responding to in paragraph 9.5 relates to an allegation of something that occurred or allegedly occurred on 28 December.

13. It is immediately obvious that the dates do not tally and I interrupted my reasons for Mr Boehm to take instructions from his client.  Mr Boehm has now taken those instructions and he has informed me of what they are.  Those instructions will need to be the subject of evidence from the mother when she does give her evidence in this case.  However, the long and the short of it is that for current purposes the mother is aware that there was a telephone call, but only because she overheard the child telling a police officer that.  She has no knowledge of what was said by the child or the father during the telephone call.

14. What that means is that the content of the telephone call is certainly in dispute - the mother does not make any admission about that - and thus the father will want to present evidence as to that.  Indeed, he has put that in paragraph 5 of his affidavit of 15 January.  What he is looking now to do, in paragraph 9 of his affidavit tendered to me today, is to present the transcript of that telephone call.

15. That is opposed on one ground and one ground only, namely, that the recording of the telephone call was done by a digital recorder.  The father from the bar table has told me that he downloaded that to his computer.  He wiped the digital recorder, so what is being termed the original recording is no longer available.  The father relies on the copy which is on his computer, and the transcript which he relies upon is taken from that recording on his computer.

16. He does not rely, because he does not need to and not all of it is relevant, on all the telephone conversation.  He relies on the first part of it and, perhaps being specific and looking at the time, the first 25 seconds.  As I say, the admission of that is opposed.

17. The Evidence Act allows for copies of documents to be tendered as evidence.  I am using "documents" in the sense it is defined in that Act and that includes, of course, electronic records, as is the case here.

18. Section 51 of the Evidence Act abolished what was previously known as the original document rule, thus there is no difficulty in terms of the father seeking to tender a copy of the document and s 48 of the Evidence Act allows him to do that.  In particular, s 48(1)(d) and s 48(1)(c) would be relevant.  In any event, s 48 allows for the tendering of the document in the way that the father has sought to do.

19. The issue though is whether the transcript that has been tendered is an accurate representation of that part of the conversation that took place on 28 December.  The way that is usually ascertained is, for example, by the other party - in this instance, the mother - calling for production of the original document, in this case the original recording, to listen to that and test that against the transcript that has been provided.  That cannot happen in this case though because of the original document no longer being available.

20. I have a discretion to refuse to accept the evidence for that reason.  For example, I need do no more than refer to s 135 of the Evidence Act which provides a general discretion to exclude evidence.

21. In looking to decide this question, I requested the father to play the recording of the first portion of the telephone conversation that he wishes to rely on, namely the first 25 seconds.

22. I invited Mr Boehm to have his client listen to that as well, but I understand it was of insufficient clarity for his client to make anything of it. I have heard the recording and although it lacked some clarity, I was able to discern the voices on it and hear what was said.

23. As Mr Boehm has said, and it is obvious, all I have is the father's assertion that the recording on his computer which he played to the court and which has been the subject of the transcript, is precisely the same as the original digital recording.

24. The onus is upon Mr Feranti, the father, to satisfy me on the balance of probabilities that the transcript is an accurate record of the telephone conversation.  I can say that from what I heard of the recording, it was apparently genuine and the transcript certainly was accurate in the sense of comparing it with the recording that I heard, but of course that is one step away from the original.

25. I refer again to s 48 of the Evidence Act, and particularly to s 48(4).  The effect of s 48(4) is that where it is sought to tender a document under that subsection on the ground of non‑availability, it must be established that, firstly the document in question is not available to the party, and secondly the tendered document has to be a copy of or an extract from or a summary of the document in question.  I must be satisfied of those two things pursuant to s 142(1) of the Evidence Act on the balance of probabilities, and I am entitled to draw reasonable inferences from the document itself under section 183.

26. In all the circumstances, I am prepared to draw the inference and find that the copy - that includes the recording on the computer of the father and the transcript which his annexed to his affidavit - is an accurate copy of the conversation between the child and her father.

I certify that the preceding 26 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 23 February 2009.

Associate