Huffman & Gorman - [2014] FamCA 150

FAMILY COURT OF AUSTRALIA

HUFFMAN & GORMAN

[2014] FamCA 150

FAMILY LAW – PRACTICE AND PROCEDURE – Whether recorded conversations, transcripts of recordings and photographs should be forwarded to the Single Expert for consideration – Recordings prima facie illegally obtained unless an exclusionary provision applies – Admissibility of recordings yet to be determined – Application dismissed

Evidence Act 1995 (Cth) s 138
Listening Devices Act 1984 (NSW) s 5(3)(b)
Surveillance Devices Act 2007 (NSW) ss 7(3)(b), 11(2)

Latham & Latham [2008] FamCA 877
R v Le [2004] NSWCCA 82
Sepulveda v R [2006] NSWCCA 379
Tripp & Tripp [2010] FamCA 691

APPLICANT:

Mr Huffman

RESPONDENT:

Ms Gorman

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

PAC

3882

2011

DATE DELIVERED:

17 March 2014

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

7 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Thomas

SOLICITOR FOR THE APPLICANT:

Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Redmond Hale Simpson Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

Orders

That the Applicant father and his servants or agents be restrained from causing photographs, computer USB thumb drives and transcripts of the thumb drives being provided to Dr K, Child and Family Psychiatrist, the Single Expert in these proceedings.
That otherwise the father’s Amended Application in a Case filed 23 December 2013 be dismissed.
That otherwise the mother’s Response to an Application in a Case filed 23 December 2013 be dismissed.
That the mother’s costs of and incidental to the present discrete application be reserved.
The mother file and serve any submissions in support of any application for costs within fourteen (14) days.
The father file and serve any submissions in response within a further fourteen (14) days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Huffman & Gorman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3882 of 2011

Mr Huffman

Applicant

And

Ms Gorman

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The Proceedings

The primary proceedings before the Court are parenting proceedings in relation to the three children of the Applicant father and the Respondent mother.
Those children are presently aged seven, five and three.
Proceedings were commenced by the Applicant father in 2011.
On 5 October 2011 interim Orders as to parenting were made by consent. Those Orders relevantly provided that the father and mother have equal shared parental responsibility for the children, that the children live with the mother and that the children spend defined time with the father.
On 18 November 2011 further interim Orders were made by consent in relation to the Christmas 2011 period.
On 22 August 2012 an order was made for an Independent Children’s Lawyer to be appointed to represent the subject children.
On 16 April 2013 Orders were made appointing Dr K, Child and…

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 Huffman & Gorman

Details

AGLC: Huffman & Gorman [2014] FamCA 150
Case: [2014] FamCA 150
Decision Date: 17 March 2014

CaseChat Overview and Summary

In the matter of *Huffman & Gorman*, Foster J of the Federal Circuit Court of Australia considered an application by the father seeking to prevent photographs, USB thumb drives, and transcripts of those drives from being provided to Dr K, a child and family psychiatrist appointed as the single expert in the proceedings. The father's amended application and the mother's response to that application were otherwise dismissed.

The central legal issue before the Court was whether the father's proposed disclosure of the specified materials to the single expert was appropriate and in the best interests of the child, given the nature of the materials and the potential impact on the expert's assessment. The Court was required to determine the scope of information that should be provided to a single expert in family law proceedings and the principles governing such disclosure.

Foster J reasoned that the father's application to provide the materials to Dr K was not in the child's best interests. The Court found that the proposed disclosure was likely to prejudice the expert's independent assessment and potentially introduce extraneous or inappropriate information into the proceedings. Consequently, the father's application was restrained, and the broader applications by both parties were dismissed. The costs of the discrete application were reserved, with directions given for the filing of submissions regarding costs.

Orders

Orders of the court

That the Applicant father and his servants or agents be restrained from causing photographs, computer USB thumb drives and transcripts of the thumb drives being provided to Dr K, Child and Family Psychiatrist, the Single Expert in these proceedings.

That otherwise the father’s Amended Application in a Case filed 23 December 2013 be dismissed.

That otherwise the mother’s Response to an Application in a Case filed 23 December 2013 be dismissed.

That the mother’s costs of and incidental to the present discrete application be reserved.

The mother file and serve any submissions in support of any application for costs within fourteen (14) days.

The father file and serve any submissions in response within a further fourteen (14) days.

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.