FAMILY LAW – EVIDENCE – Admissibility – Admissibility of excerpt of transcript of audio recording – Admissibility of audio recording – Where the mother has raised an objection to a paragraph in the father’s Affidavit that was improperly obtained – Consideration of whether to admit the paragraph into evidence – Where the parties indicate that they will confer on an agreed total transcript of the recording – Where the Court indicates that it will consider a tender of the whole transcript of the recording – Paragraph not read.
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 Giunta & Giunta 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 3842 of 2018
MR GIUNTA
Applicant
And
MS GIUNTA
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The substantive matter before the Court concerns an Application for final orders for an adjustment of the parties’ property interests and parenting orders in respect to the children, X born … 2011 and Y born … 2013. The father also has a child from a previous relationship, W born … 2004, that lives in the former matrimonial home with the father.
This decision concerns an objection by Ms Giunta (“the mother”) to the admission into evidence of paragraph 38 of Mr Giunta’s (“the father”) Affidavit filed 21 April 2020 commencing with the words, “I recorded her saying” down to the end of the paragraph, including the admissibility of a recording annexure as “N” to the Affidavit. That paragraph is set out as follows:
….I recorded her saying:
[The mother]: “It was never W’s room, he’s not here half the…
Grounds of appeal
[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
Giunta & Giunta (No 2) [2020] FamCA 1045
Case
[2020] FamCA 1045
Decision Date
CaseChat Overview and Summary
In the matter of *Giunta & Giunta (No 2)*, the court considered the admissibility of evidence in a family law proceeding. The mother objected to a paragraph within the father's affidavit, alleging it was improperly obtained. The father sought to rely on this paragraph, which was derived from an audio recording.
The central legal issue before the court was whether the disputed paragraph, and by extension the audio recording from which it was extracted, should be admitted into evidence, notwithstanding the mother's objection regarding its improper procurement. The court also considered the potential admissibility of the entire transcript of the audio recording.
His Honour McClelland DCJ indicated that he would consider admitting the entire transcript of the audio recording into evidence, subject to the parties conferring and agreeing on its accuracy. The paragraph from the father's affidavit was not read into evidence at that stage, pending the resolution of the transcript issue.