Iphostrou and Iphostrou and Ors (No 4) - [2010] FamCA 1183

FAMILY COURT OF AUSTRALIA

IPHOSTROU & IPHOSTROU AND ORS (NO. 4)

[2010] FamCA 1183

FAMILY LAW – EVIDENCE – Admissibility
FAMILY LAW – DISCOVERY

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Parker v Comptroller-General of Customs (2007) 243 ALR 574

APPLICANT:

Ms E Iphostrou

RESPONDENT:

Mr S Iphostrou

2^ND RESPONDENT:

Mr P Iphostrou

3^RD RESPONDENT:

Mr J Iphostrou

FILE NUMBER:

MLC

8731

2009

DATE DELIVERED:

13 December 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

13 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Burnside QC with Mr Thompson

SOLICITOR FOR THE APPLICANT:

Hallett West

COUNSEL FOR THE RESPONDENT:

Mr North SC with Mr Wood

SOLICITOR FOR THE RESPONDENT:

Belleli King & Assoc

COUNSEL FOR THE 2^ND AND 3^RD RESPONDENTS:

Mr Denton SC with Ms Djohan

SOLICITORS FOR THE

RESPONDENTS:

Davies Moloney; Natalie Rompotis

COUNSEL FOR MS AA:

Mr Campbell-Horsfall

COUNSEL FOR BELLELI KING & ASSOCIATES:

Mr Manley

Orders

That pursuant to s 138 of the Evidence Act 1995 (Cth), the affidavits of the witnesses Mr K and Mr G are admitted into evidence for the purposes of this interlocutory hearing.

IT IS NOTED that publication of this judgment under the pseudonym <pseudonym> is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8731 of 2009

Ms E Iphostrou

Applicant

And

Mr S Iphostrou

Respondent

And

Mr P Iphostrou

Respondent

And

Mr J Iphostrou

Respondent

REASONS FOR JUDGMENT

These proceedings involve not only the husband and wife but also two of their children, a variety of entities and some entity shareholders. All agreed that the financial proceedings are complex.
For the purposes of the wife’s interlocutory application for litigation funding orders, she desired to rely upon affidavits of her forensic accountant and her solicitor. Objection was taken by the husband to some of the evidence in those affidavits because the information upon which each witness was commenting was illegally obtained.
The wife sought a ruling under s 138 Evidence Act 1995 (Cth) that the evidence should be admitted notwithstanding the illegality.
On 13 December 2010, after hearing submissions, I ruled the evidence was admissible and said I would later give reasons. These are those reasons.
The facts giving rise to the need for the order are not controversial.
In early 2010, the parties’ then 16 year old daughter was at an apartment used by her father and invited her mother, who was then separated from her father, to call in and see her. The wife noticed suitcases and was told by the daughter that they belonged to an employee of the business which is at the very centre of the dispute between all of the parties.
The wife’s evidence was as follows:
Concerned to gain information for these proceedings I opened the suitcases and found…
The wife then set out in some detail that she observed personal papers of the employee, a tape recorder…

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 Iphostrou and Iphostrou and Ors (No 4)

Details

AGLC: Iphostrou and Iphostrou and Ors (No 4) [2010] FamCA 1183
Case: [2010] FamCA 1183
Decision Date

CaseChat Overview and Summary

The Family Court of Australia, in the matter of *Iphostrou and Iphostrou and Ors (No. 4)*, considered an interlocutory application by the wife for litigation funding orders. The dispute involved the husband and wife, their children, and various entities and shareholders, with complex financial proceedings at its core. The wife sought to rely on affidavits from her forensic accountant and solicitor, but the husband objected to certain evidence within these affidavits on the grounds that the underlying information had been illegally obtained.

The central legal issue before the court was whether the evidence, obtained improperly by the wife, should be admitted notwithstanding its illegality, pursuant to section 138 of the *Evidence Act 1995* (Cth). This required the court to determine if the desirability of admitting the evidence outweighed the undesirability of admitting evidence obtained in such a manner. The court was directed to consider factors including the probative value of the evidence, its importance in the proceedings, the nature of the case, the gravity of the impropriety, whether it was deliberate or reckless, and the difficulty of obtaining the evidence lawfully.

Justice Cronin reasoned that while the wife conceded the evidence was improperly obtained, placing the onus on her to justify its admission, the circumstances warranted its inclusion. The court noted the significant volume of documents obtained and inferred a targeted operation, acknowledging that a parent encouraging a child to obtain such information could be a factor against admission. However, the court found that the potential for the same documents to be obtained through proper discovery, given the joinder of relevant entities, mitigated concerns about the public interest in discouraging vigilante methods. The court also considered the conflicting evidence regarding the ownership of the business and the documents, the potential for the evidence to reveal a conspiracy or a legitimate explanation, and the difficulty in assessing its probative value at an interlocutory stage. Ultimately, the court concluded that the desirability of admitting the evidence, particularly its importance in potentially uncovering the true financial position and the difficulty in obtaining it otherwise, outweighed the undesirability of its improper acquisition.

The court ordered that the affidavits of Mr. K and Mr. G be admitted into evidence for the purposes of the interlocutory hearing. Publication of the judgment under a pseudonym was approved pursuant to section 121(9)(g) of the *Family Law Act 1975* (Cth).

Orders