Huffman & Gorman (No. 2) - [2014] FamCA 1077

FAMILY COURT OF AUSTRALIA

HUFFMAN & GORMAN (NO. 2)

[2014] FamCA 1077

FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of evidence – voir dire – admissibility of recording of conversations without the consent of the other party – where a considerable period of time between creating of recordings and use of recordings – recordings prima facie inadmissible unless exclusionary provision applies - were the recordings reasonably necessary to protect the lawful interests of the principal party – unable to determine some facts at this stage of the proceedings – court’s discretion under section 138 Evidence Act to admit evidence – probative value of evidence – evidence is admissible.

Evidence Act 1995 (Cth) ss 135, 138
Family Law Act 1975 (Cth) ss 60CC, 69ZT

Listening Devices Act 1984 (NSW) s 5
Surveillance Devices Act 2007 (NSW) ss 3, 7

APPLICANT:

Mr Huffman

RESPONDENT:

Ms Gorman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

3882

2011

DATE DELIVERED:		13 October 2014 - Orders 4 December 2014 - Reasons
PLACE DELIVERED:	Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

13 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Maddox

SOLICITOR FOR THE APPLICANT:

Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Redmond Hale Simpson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wearne as advocate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Naidovski
Legal Aid Parramatta

Orders

The application to exclude evidence contained in paragraphs 25, 128 to 150 and 235 of the father’s affidavit filed on 23 September 2014 is dismissed. The evidence is admitted.

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

REASONS FOR JUDGMENT

Introduction

In parenting proceedings which concern the three children of Mr Huffman (“the father”) and Ms Gorman (“the mother”) a question of admissibility of evidence arose.
Following a hearing on the voir dire, I admitted the evidence that was objected to, and indicated that I would publish my Reasons for Judgment at a later date. These are those Reasons.

background to the application

The father and mother are parents of three young children, L who is seven, S who is six and Z who is four. The parents separated after a five year marriage and the parenting application before the court concerns the long-term parenting arrangements for the children.
Following the breakdown of the parents’ relationship, the children have lived with their mother and spent limited time with their father. The father seeks orders that the children live with him as he contends that the mother’s controlling and violent conduct has emotionally and psychologically harmed the children. The mother denies that the children have been harmed as a result of her behaviour or mental state and seeks orders that they live with her 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 (No. 2)

Details

AGLC: Huffman & Gorman (No. 2) [2014] FamCA 1077
Case: [2014] FamCA 1077
Decision Date: 13 October 2014

CaseChat Overview and Summary

In *Huffman & Gorman (No. 2)*, Hannam J of the Family Court of Australia considered an application by the mother to exclude certain evidence contained within the father's affidavit filed on 23 September 2014. The dispute concerned the admissibility of specific paragraphs within this affidavit.

The primary legal issue before the court was whether the evidence contained in paragraphs 25, 128 to 150, and 235 of the father's affidavit should be admitted or excluded. This required the court to assess the relevance and potential prejudice of the contested evidence in the context of the proceedings.

Hannam J dismissed the mother's application to exclude the evidence. The court found that the evidence was admissible, implying that it met the necessary legal thresholds for relevance and that any potential prejudice did not outweigh its probative value. Consequently, the court ordered that the evidence contained in the specified paragraphs of the father's affidavit be admitted.

Orders

Orders of the court

1. The application to exclude evidence contained in paragraphs 25, 128 to 150 and 235 of the father’s affidavit filed on 23 September 2014 is dismissed. The evidence is admitted.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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