FAMILY LAW – EVIDENCE – use to be made of recordings taken by a mobile telephone and from skype conversations – whether unlawful telecommunications – whether s 138 Evidence Act permits receipt of transcriptions of those recordings – trial of proceeding adjourned part heard after five days of hearing – application to adduce evidence tending to put in issue the circumstances in which transcription of the 13 separate mobile telephone calls and skype conversations were created – whether any unfairness occasioned by admitting the evidence about the circumstances of the creation of the 13 transcriptions, despite extensive cross-examination already having taken place on those 13 transcriptions – held, further evidence allowed.
Commonwealth of Australia Constitution Act (The Constitution) 1900, s 109
[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.
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Details
AGLC
Gin v Hing [2019] FamCA 779
Case
[2019] FamCA 779
Decision Date
CaseChat Overview and Summary
In proceedings before Wilson J, the wife sought leave to file an affidavit of Mr D, affirmed on 15 October 2019. The husband had exhibited audio recordings as part of his case.
The court was required to determine whether to grant the wife leave to file her proposed affidavit, and whether to grant leave for the filing of an affidavit of Mr E, affirmed on 11 September 2019. Further, the court needed to make directions regarding the future conduct of the proceedings and address the comparison of transcripts with audio recordings.
Wilson J dismissed the wife's application for leave to file Mr D's affidavit. However, leave was granted for the filing of Mr E's affidavit. The matter was listed for a directions hearing to determine future conduct. Crucially, the husband was ordered, at his own expense, to engage a Mandarin interpreter, chosen by the independent children's lawyer from appropriately qualified individuals residing outside Victoria, to compare specific transcripts with audio recordings and identify any errors or omissions. The costs associated with this comparison and the hearing on 21 October 2019 were reserved.
Orders
Orders of the court
1.
The wife’s oral application made 21 October 2019 seeking leave to file the affidavit of Mr D affirmed 15 October 2019 is dismissed.
2.
Leave is granted for the filing of the affidavit of Mr E affirmed 11 September 2019.
3.
The matter is listed on 11 November 2019 at 9am for a directions hearing in relation to the future conduct of the matter.
4.
The husband, at his expense at first instance, engage a Mandarin interpreter to compare the transcripts referred to in paragraph 7 of the affidavit of Mr F affirmed 13 August 2019 with the audio recordings exhibited on behalf of the respondent husband in these proceedings, and identify errors and omissions, if any.
5.
For the purposes of paragraph 4 herein, such interpreter is to be chosen by the independent children’s lawyer from those appropriately qualified and residing outside the State of Victoria.
6.
The costs of and associated with the aforementioned comparison and the hearing on 21 October 2019 are reserved.
Note: The form of the order is subject to the entry of the order in the Court’s records.