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Hazan & Elias

Hazan & Elias

Case [2011] FamCA 376 24 May 2011

Statutory Construction

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

HAZAN & ELIAS

[2011] FamCA 376

FAMILY LAW – CHILDREN - EVIDENCE – Where the husband secretly taped his interview with the family consultant – Whether the recording and its transcript are admissible – Interpretation of section 11C of the Family Law Act 1975 – Whether section 11C of the Family Law Act ousts the provisions in section 138 of the Evidence Act 1995 – Whether Rule 1.19 of the Family Law Rules 2004 is an ‘Australian law’ – Where evidence was obtained in breach of an Australian law – Where evidence was obtained improperly – Consideration of discretion under s138(3) of the Evidence Act 1995 – Recording and its transcript inadmissible

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)
Invasion of Privacy Act 1971 (Qld)

Ames & Ames 825 (2009) 42 Fam LR 95
CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
Droit de la famille [2009] RDF 118
Employee Advocate v Williamson (2001) 111 FCR 20
Fagenblat & Feingold Partners Pty Limited [2001] VSC 454
Gray v Pearson (1857) 10 ER 1216
Harrington v Lowe (1996) 190 CLR 311; (1996) FLC 92-668
Kingley & Arndale (No. 2) (2010) 44 Fam LR 492
Latham & Latham [2008] FamCA 877
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nepean & Treloar [2010] FamCA 781
Northern Territory v Collins (2008) 235 CLR 619
Northern Territory of Australia v GPAO (1999) 196 CLR 553
Parker v Comptroller-General of Customs (2009) 252 ALR 619
Perpetual Executors and Trustees Assoc of Australia Ltd v FCT (1948) 77 CLR 1
Ponzio v Multiplex (2005) FCA 522
Rees v Shaw (2009) FMCA fam 178
Reisner & Reisner [2010] FamCA 473
Reisner & Reisner (No. 2) [2010] FamCA 678
Shire President v Board of Land & Works (1904) CLR 679
South Australia v Tanner (1989) 166 CLR 161
Toope v Toope (2000) 8 RFL (5th) 446
Tripp & Tripp [2010] FamCA 691
Tryon & Clutterbuck & Attorney General of the Commonwealth (2010) 246 FLR 193

APPLICANT:

Ms Hazan

RESPONDENT:

Mr Elias

INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

FILE NUMBER:

CSC

442

2010

DATE DELIVERED:

24 May 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

6 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fellows

SOLICITOR FOR THE APPLICANT:

Lehmann Featherstone

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Victoire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Susan Gray

Orders

(orders made 6 May 2011)

The father’s Application which he filed under cover of an email dated 20 April 2011 that the recording on the SD card held on the court file pursuant to order 8 of 21 March 2011 be adduced into evidence in proceedings CSC 442/2010, be dismissed.
The application to tender in evidence a transcript of the SD card or a CD copy of that SD card referred…

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.

Continue reading Hazan & Elias

Details

AGLC: Hazan & Elias [2011] FamCA 376
Case: [2011] FamCA 376
Decision Date: 24 May 2011

CaseChat Overview and Summary

In *Hazan & Elias*, heard by Watts J, the husband sought to adduce into evidence a secret recording he made of an interview with a family consultant, along with its transcript. The wife opposed the admission of this evidence.

The central legal issues before the court were whether the secret recording and its transcript were admissible, particularly in light of section 11C of the *Family Law Act 1975* (Cth) and section 138 of the *Evidence Act 1995* (Cth). The court was required to determine if section 11C of the *Family Law Act* displaced the operation of section 138 of the *Evidence Act*, and whether Rule 1.19 of the *Family Law Rules 2004* constituted an ‘Australian law’ for the purposes of section 138. The court also considered its discretion under section 138(3) of the *Evidence Act* regarding evidence obtained improperly or in breach of an Australian law.

Watts J found that the recording and its transcript were inadmissible. The court reasoned that the recording was obtained in breach of an Australian law, specifically Rule 1.19 of the *Family Law Rules 2004*, which governs the conduct of family consultants. Furthermore, the court determined that section 11C of the *Family Law Act* did not oust the application of section 138 of the *Evidence Act*. Applying the discretion under section 138(3), the court concluded that the prejudicial effect of admitting the evidence outweighed its probative value.

Consequently, the court dismissed the father's application to adduce the recording and its transcript into evidence.

Orders

Orders of the court

(orders made 6 May 2011)

The father’s Application which he filed under cover of an email dated 20 April 2011 that the recording on the SD card held on the court file pursuant to order 8 of 21 March 2011 be adduced into evidence in proceedings CSC 442/2010, be dismissed.

The application to tender in evidence a transcript of the SD card or a CD copy of that SD card referred to in order 1 be dismissed.

Notation:

Given the complexities of the arguments that I have heard today, I will deliver my reasons at a later time.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hazan & Elias [2011] FamCA 376

Most Recent Citation

Harvey v Henzell [2015] QCA 261

Cases citing this decision · 5 of 5 shown

VELDERMAN & VELDERMAN (No.2)
[2020] FCCA 1015 Para 1

…ded by the parents or whomever else the parents send along to undertake that changeover.[37] [35] Transcript page 25, line 23. [36] Hazan & Elias [2011] FamCA 376. [37] Transcript page 26, lines 1-8.…
Harvey v Henzell
[2015] QCA 261

…Pulham (1982) 148 CLR 658; [1982] HCA 70, distinguished Hazan v Elias (2011) 255 FLR 338; [2011] FamCA 376, explained Mann v O’Neill (1997) 191 CLR 204; [1997] HCA 28, followed Pickering v McArthur [2005] QCA 294, considered Robert Bax & Associates v Cavenham Pty Ltd [2011] QCA 53, followed Stanizzo v Sassu (2014)…
KELLY & LOMAX
[2013] FamCA 556

…vasion of Privacy Act (Qld) ss 43, 45 Evidence Act (Cth) ss 131, 138 Crimes Act (Cth) ss 42, 43 Hazan v Elias [2011] FamCA 376 Seven Network Ltd v News Ltd [2006] FCA 343 GPI Leisure Corporation Limited (in liquidation) v Yuill (1997) NSWLR 225…
Gordon and Junee
[2012] FamCA 12 Para 21

…I note in passing it is not appropriate for a family consultant to give permission for interviews for a report to be videotaped (see Hazan & Elias [2011] FamCA 376; rule 1.19 Family Law Rules). The father during the interview, inappropriately in the family consultant’s view (an opinion I agree with), reiterated he…
Hazan &Elias (No 2)
[2011] FamCA 391

…Hazan & Elias [2011] FamCA 376 Aligante & Waugh (No. 2) [2010] FamCA 554 Murray & Tomas and Anor [2011] FamCAFC 81 British American Tobacco Australia Services Ltd v Laurie (2011) 273 ALR 429 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337…

View all 5 citing cases →

Cases cited in this decision · 18 of 18 shown

Nepean & Treloar
[2010] FamCA 781 Para 4

…riate statements by the report writer to the solicitor for the mother together with unacceptable answers in cross examination; 61.2. Nepean & Treloar [2010] FamCA 781, where Fowler J discarded the single expert (psychiatrist) when it emerged he had, unknown to the other side, been inappropriately provided with mate…
Tripp and Tripp
[2010] FamCA 691 Para 3

…In Tripp & Tripp [2010] FamCA 691 the mother, in breach of the Surveillance Devices Act 2007 (NSW) recorded interviews between an independent expert, a psychiatrist, appointed by the court pursuant to chapter 15 Family Law Rules and the children of the marriage. Similarly to this case, a litigant challenged some of…
Reisner and Reisner (No. 2)
[2010] FamCA 678 Para 17

…ot read the transcript of the evidence of the family consultant. She heard the family consultant’s evidence afresh (see Reisner & Reisner (No. 2) [2010] FamCA 678). If the father’s interpretation of the effect of s 11C FLA is correct, and had one of the parties or the Independent Children's Lawyer insisted, Her Hon…
Reisner & Reisner
[2010] FamCA 473 Para 17

…f in circumstances where it was asserted there had been out of court conversations between the judge and the family consultant (see Reisner & Reisner [2010] FamCA 473; also referred to in Kingley & Arndale (No. 2) (2010) 44 Fam LR 492 at paragraph 5(b)). The family consultant had given evidence and been cross exami…
Parker v Comptroller-General of Customs
[2009] HCA 7 Para 1

…ion of contravening or going counter to; violation, infringement, transgression” (as per French CJ in Parker v Comptroller-General of Customs (2009) 252 ALR 619 at para 29). His Honour went on to say at paragraph 30: “Without essaying an exhaustive definition, the core meaning of ‘contravention’ involves disobedience…
Latham & Latham
[2008] FamCA 877 Para 1

…The father relied upon a statement made by Le Poer Trench J in Latham & Latham [2008] FamCA 877 . In that case the husband, inter alia, recorded conversations between the mother and the children which “if correctly reported, would paint the mother as a seriously bad child abuser”. The recordings were of private con…
Northern Territory v Collins
[2008] HCA 49 Para 5

…The High Court in Northern Territory v Collins (2008) 235 CLR 619 at paragraph 99 said:- “The applicable principles of construction can be shortly stated. Construction must begin with a consideration of the text itself. The meaning of the text cannot always be determined in isolation from its context, which includes…
Fagenblat v Feingold Partners Pty Ltd
[2001] VSC 454 Para 4

…The father relies upon Fagenblat & Feingold Partners Pty Limited [2001] VSC 454 and purported to read out a quote from Pagone J in the following terms: “The evidence received on a single biased expert witness in such circumstances may carry through and, in fact, the impartiality of the court through its examinati…
Employment Advocate v Williamson
[2001] FCA 1164 Para 1

…the notion that the issue of the admissibility of the tape should be determined at the final stage of the hearing (see Employee Advocate v Williamson (2001) 111 FCR 20 but compare Ponzio v Multiplex (2005) FCA 522).…
Northern Territory v GPAO
[1999] HCA 8 Para 3

…. Prior to the 2006 Act, the Family Court was bound by the rules of evidence in child related proceedings (see Northern Territory of Australia v GPAO (1999) 196 CLR 553 McHugh and Callinan JJ at paragraph 198, and Gaudron J at paragraph 139). Section 69ZT FLA relaxes some of the rules of evidence in child related pro…
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2 Para 4

…In CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384, Brennan CJ, Dawson, Toohey and Gummow JJ said: “It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief w…
Harrington v Lowe
[1996] HCA 8 Para 2

…ice and procedure to be followed in the Family Court and some other courts exercising jurisdiction under the Act. The High Court in Harrington v Lowe (1996) 190 CLR 311; (1996) FLC 92-668 said: “It should be noted that the regulation-making power, unlike that provided in s 127 of the 1959 Act, is conferred not upon t…
South Australia v Tanner
[1989] HCA 3

…09) FMCA fam 178 Reisner & Reisner [2010] FamCA 473 Reisner & Reisner (No. 2) [2010] FamCA 678 Shire President v Board of Land & Works (1904) CLR 679 South Australia v Tanner (1989) 166 CLR 161 Toope v Toope (2000) 8 RFL (5th) 446 Tripp & Tripp [2010] FamCA 691 Tryon & Clutterbuck & Attorney General of the Commonwealth (2010) 246…
Perpetual Executors and Trustees Association of Australia Ltd v Federal Commissioner of Taxation
[1948] HCA 24 Para 6

…provisions when they are in conflict (see for the example the discussion by Dixon J in Perpetual Executors and Trustees Assoc of Australia Ltd v FCT (1948) 77 CLR 1 at 29-30).…
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation
[1981] HCA 26 Para 3

…In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Mason and Wilson JJ said that “departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency” and later that: “In some cases in the past these rules of construction have been appl…
Pty Ltd v Federal Commissioner of Taxation
381 US 479 Para 3

…In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Mason and Wilson JJ said that “departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency” and later that: “In some cases in the past these rules of construction have been applied too rigidly. The fundamenta…
Gray v Pearson
(1857) 10 ER 1216 Para 1

…The original so-called "golden rule" of construction was expressed in Gray v Pearson (1857) 10 ER 1216 at 1234, where Lord Wensleydale said: “I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing w…
Pty Ltd v Sprowles
636 F Supp 1419 Para 10

…family consultant was that of an expert and commented that the principles governing expert opinion evidence are not in doubt (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). The functions of family consultants are set out in s 11A FLA and include reporting to the court under s 62G FLA (see s 11A(d) FLA).…

Legislation cited in this decision · 7

Acts Interpretation Act 1901 (Cth)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 2)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 4)
Invasion of Privacy Act 1971 (Qld)
1 mention (from Para 4)
Surveillance Devices Act 2007 (NT)
1 mention (from Para 1)