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Janssen & Janssen

Janssen & Janssen

Case [2016] FamCA 345 1 February 2016

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Procedural Fairness

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Family Law

Evidence

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FAMILY COURT OF AUSTRALIA

JANSSEN & JANSSEN

[2016] FamCA 345

FAMILY LAW – EVIDENCE – Admissibility – Admissibility of audio recordings made by the mother of exchanges between the parties in circumstances where the recordings were made without the consent of the father – Admissibility of transcripts of the audio recordings – Where the Court finds the audio recordings fall within the exception contained in sub-section 7(3)(b) of the Surveillance Devices Act 2007 (NSW) as the recordings were reasonably necessary to protect the lawful interests of the mother – Where the Court exercises its discretion to admit the audio recordings and transcripts into evidence – Certificate issued to the mother pursuant to section 128 of the Evidence Act 1995 (Cth).

FAMILY LAW – EVIDENCE – Application by the father under section 69ZT(3) of the Family Law Act 1975 (Cth) for the provisions of the Evidence Act 1995 (Cth) to apply – Where there are serious allegations of family violence made against the father – Where the Court is satisfied ‘exceptional’ circumstances apply – Rules of evidence to apply to evidence given in respect of events on a specific date and alleged threats made by the father concerning the children.

Evidence Act 1995 (Cth) ss 128, 135, 138
Family Law Act 1975 (Cth) ss 4AB, 69ZN, 69ZT

Surveillance Devices Act 2007 (NSW) s 7

Baker v The Queen (2004) 223 CLR 513
Corby & Corby [2015] FCCA 1099
Huffman & Gorman (No.2) [2014] FamCA 1077
Khalil & Tahir-Ahmadi [2010] FamCA 1080
Khalil & Tahir-Ahmadi (2012) FLC 93-506
Maluka & Maluka (2011) FLC 93-464

APPLICANT:

Ms Janssen

RESPONDENT:

Mr Janssen

INDEPENDENT CHILDREN’S LAWYER:

Ms Volk

FILE NUMBER:

SYC

5802

2013

DATE DELIVERED:

1 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

1 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Reid Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Verekers Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Helen Volk Lawyers

Orders

That a certificate issue pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to the whole of the affidavit of Ms Janssen sworn on 1 February 2016.
The transcript of the audio recordings between the parties made by the mother on 4 April 2013, 30 April 2013, 1 May 2013, 10 June 2016, 23 August 2013, 24 August 2013 be marked as Exhibit 2 in the proceedings.

The audio recordings between the parties made by the mother on 4 April 2013, 30 April 2013, 1 May 2013, 10 June 2016, 23 August 2013, 24 August 2013 be marked as Exhibit 3 in the proceedings.

Except in relation to the events of 10 September 2013 and the alleged threats made by the father concerning the children, I will apply sections 69ZT(1) and 69ZT(2) of the Family Law Act 1975 (Cth) in these proceedings.

IT IS NOTED that publication of this judgment by this Court…

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 Janssen & Janssen

Details

AGLC: Janssen & Janssen [2016] FamCA 345
Case: [2016] FamCA 345
Decision Date: 1 February 2016

CaseChat Overview and Summary

In *Janssen & Janssen*, heard by McClelland J, the dispute concerned the admissibility of audio recordings and their transcripts made by the mother of exchanges between the parties. The father objected to the admission of this evidence on the grounds that the recordings were made without his consent.

The court was required to determine whether the audio recordings and their transcripts were admissible in the proceedings, particularly in light of the father's objection and serious allegations of family violence made against him. A further issue was whether the rules of evidence under the *Evidence Act 1995* (Cth) should apply to evidence concerning specific events and alleged threats made by the father regarding the children.

McClelland J found that the audio recordings fell within the exception provided by s 7(3)(b) of the *Surveillance Devices Act 2007* (NSW), as they were reasonably necessary to protect the lawful interests of the mother. The court then exercised its discretion to admit the recordings and transcripts into evidence. Furthermore, the court was satisfied that "exceptional" circumstances applied, warranting the application of the *Evidence Act 1995* (Cth) to evidence relating to the events of 10 September 2013 and the alleged threats made by the father concerning the children, pursuant to s 69ZT(3) of the *Family Law Act 1975* (Cth). A certificate was issued to the mother under s 128 of the *Evidence Act 1995* (Cth) in relation to her affidavit.

The court ordered that a certificate issue pursuant to s 128 of the *Evidence Act 1995* (Cth) in relation to the whole of the mother's affidavit. The transcript of the audio recordings was marked as Exhibit 2, and the audio recordings themselves were marked as Exhibit 3. The court also ordered that, except in relation to the events of 10 September 2013 and the alleged threats made by the father concerning the children, it would apply sections 69ZT(1) and 69ZT(2) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

That a certificate issue pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to the whole of the affidavit of Ms Janssen sworn on 1 February 2016.

The transcript of the audio recordings between the parties made by the mother on 4 April 2013, 30 April 2013, 1 May 2013, 10 June 2016, 23 August 2013, 24 August 2013 be marked as Exhibit 2 in the proceedings.

The audio recordings between the parties made by the mother on 4 April 2013, 30 April 2013, 1 May 2013, 10 June 2016, 23 August 2013, 24 August 2013 be marked as Exhibit 3 in the proceedings.

Except in relation to the events of 10 September 2013 and the alleged threats made by the father concerning the children, I will apply sections 69ZT(1) and 69ZT(2) of the Family Law Act 1975 (Cth) in these proceedings.

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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Citations

Janssen & Janssen [2016] FamCA 345

Most Recent Citation

Almeras & Velez (No 2) [2024] FedCFamC2F 1117

Cases Citing This Decision

Almeras & Velez (No 2) [2024] FedCFamC2F 1117
Citation 1 (Para 19)

…Ms An referred to the decision in Janssen & Janssen [2016] FamCA 345 where the Court considered the question as to whether the recordings were reasonably necessary to protect the principal party's lawful interests. The Court stated: The primary question is whether her action was reasonably necessary to protect her…
Gin v Hing [2019] FamCA 779
Citation 2 (Para 29)

…ew South Wales Surveillance Devices Act , his Honour would have exercised his discretion to admit the evidence under s 138 of the Evidence Act . [41] [2016] FamCA 345…
Chen & Chen and Ors (No 4) [2017] FamCA 1187
Citation 3 (Para 8)

…In Janssen and Janssen [2016] FamCA 345 McLelland J considered the admissibility of transcripts of audio recordings made by one party without the consent of the other. The issue was whether or not the recording fell within the exception in the relevant New South Wales legislation. His Honour noted that it was commo…
Janssen & Janssen (No.2) [2016] FamCA 796
Citation 4 (Para 5)

…pts into evidence. My reasons for doing so are set out in my ex tempore Reasons for Judgment delivered on 1 February 2016.[10] [10] Janssen & Janssen [2016] FamCA 345.…
Garner and Garner [2016] FamCA 630
Citation 5 (Para 8)

…Senior counsel for the mother referred to the decision of Janssen & Janssen [2016] FamCA 345 where McClelland J issued a certificate pursuant to 128 of the Evidence Act in relation to the affidavit of the mother and admitted both the transcript and the audio recordings as exhibits in the proceedings.…

See all citing cases →

Cases Cited

Corby & Corby [2015] FCCA 1099
Citation 1 (Para 6)

…primary question is whether her action was “reasonably necessary” to protect her lawful interests. In that respect, in the case of Corby & Corby [2015] FCCA 1099, Judge Sexton applied the decision of the Court of Criminal Appeal in DW v R [2014] NSWCCA 28, to find on the facts before her: 23. …that the Mother had…
Huffman & Gorman (No. 2) [2014] FamCA 1077
Citation 2 (Para 9)

…In Huffman & Gorman (No. 2) [2014] FamCA 1077, the Court considered whether to exercise jurisdiction under section 138 of the Evidence Act 1995 (Cth) (“the Evidence Act ”), to admit a recording into evidence despite the possibility of it being found that it was illegally obtained. In deciding that it should be admit…
DW v R [2014] NSWCCA 28
Citation 3 (Para 6)

…ests. In that respect, in the case of Corby & Corby [2015] FCCA 1099, Judge Sexton applied the decision of the Court of Criminal Appeal in DW v R [2014] NSWCCA 28, to find on the facts before her: 23. …that the Mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to r…
Khalil and Tahir-Ahmadi [2010] FamCA 1080
Citation 4 (Para 33)

…nce in respect to the remaining issues in the case, I have a discretion in considering the probative value of such evidence. In Khalil & Tahir-Ahmadi [2010] FamCA 1080, Dawe J, at first instance, said: 24. I do take into account the importance of some of the evidence, so far as it relates to various issues, and the…
Baker v The Queen [2004] HCA 45
Citation 5 (Para 27)

…C 93-506 endorsed the decision of Dawe J at first instance in referring to the interpretation of “exceptional” by Callinan J in the High Court in Baker v The Queen (2004) 223 CLR 513, who in turn relied on the case of R v Kelly (Edward) [2000] QB 198 at page 208, where Lord Bingham said: We must construe ‘exceptional’ as a…
[2000] QB 198 [2000] QB 198
Citation 6 (Para 27)

…on of “exceptional” by Callinan J in the High Court in Baker v The Queen (2004) 223 CLR 513, who in turn relied on the case of R v Kelly (Edward) [2000] QB 198 at page 208, where Lord Bingham said: We must construe ‘exceptional’ as an ordinary familiar English adjective and not a term of art. It describes the ci…

Legislation Cited

Evidence Act 1995 (Cth) 128, 135, 138
4 mentions (from Para 1)
Family Law Act 1975 (Cth) 4AB, 69ZN, 69ZT
4 mentions (from Para 1)
Surveillance Devices Act 2007 (NT) 7
3 mentions (from Para 4)