Latham & Latham - [2008] FamCA 877

FAMILY COURT OF AUSTRALIA

LATHAM & LATHAM

[2008] FamCA 877

FAMILY LAW – PRACTICE & PROCEDURE – Evidence – Recorded conversations

Family Law Act 1975 (Cth)

Sepulveda v R [2006] NSWCCA 379

APPLICANT:

Ms Latham

RESPONDENT:

Mr Latham

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

SYC

1602

2008

DATE DELIVERED:

23 October 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

21 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT:

Mr Foster

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

Orders

MFI1 is admitted to evidence and marked as Exhibit H1.
The balance of the recordings making up approximately 11 hours are to be produced to the Court and marked for identification as MFI2.
The wife may at any time apply for MFI2 to be admitted as an exhibit in the proceedings.
The parties are to formulate further instruction to Dr W to enable him to complete his report making provision for those matters referred to in these Reasons.
In the event of the parties being unable to agree as to the further instruction to Dr W as required by these orders leave is granted to re-list the matter before me at each party’s risk as to costs.
The husband is to pay the additional cost incurred by Dr W in reinterviewing the parties and considering the material in Exhibit H1 and MFI2.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1602 of 2008

MS LATHAM

Applicant

And

MR LATHAM

Respondent

REASONS FOR JUDGMENT

Before the Court is an application by the husband to tender a document which has been marked for identification as MFI1. The document is a compact disc containing inter alia recordings of conversation between the wife and the children. It is conceded by the husband that the recordings were made between October and December 2007. They were made without the knowledge or consent of the wife. The recordings may also include conversations between the husband and the children and between the husband and the wife.
The application to tender the recordings early in the history of the case in the Court arises because the husband provided the recordings to Dr W who has been appointed as the single expert in the case and who is in the process of preparing a report pursuant to a court order requiring same.
Whether the recordings are admitted to evidence or not may impact upon a determination of whether Dr W should continue to be the single expert engaged for the purposes of the preparation of a report.
On 30 September 2008 I delivered a judgment in relation to an application by the mother to be allowed to spend additional time…

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 Latham & Latham

Details

AGLC: Latham & Latham [2008] FamCA 877
Case: [2008] FamCA 877
Decision Date: 23 October 2008

CaseChat Overview and Summary

In the matter of *Latham & Latham*, heard before Le Poer Trench J, the dispute concerned the admissibility of certain recordings and the further instructions to be provided to a Dr W. The wife sought to have recordings admitted into evidence, while the husband was ordered to bear the costs associated with Dr W's further work.

The court was required to determine whether a specific recording, MFI1, should be admitted as evidence, and whether the remaining recordings, MFI2, should be produced for identification and potentially admitted later. Furthermore, the court needed to establish the necessary instructions for Dr W to complete his report, including provisions for re-interviewing the parties and considering new material.

Le Poer Trench J ordered that MFI1 be admitted as Exhibit H1. The remaining approximately 11 hours of recordings were to be produced to the Court and marked for identification as MFI2, with the wife granted leave to apply for their admission as exhibits at any time. The parties were directed to agree on further instructions for Dr W, and in the event of disagreement, the matter could be relisted before the judge. Crucially, the husband was ordered to pay the additional costs incurred by Dr W for re-interviewing the parties and reviewing Exhibit H1 and MFI2.

Orders

Orders of the court

MFI1 is admitted to evidence and marked as Exhibit H1.

The balance of the recordings making up approximately 11 hours are to be produced to the Court and marked for identification as MFI2.

The wife may at any time apply for MFI2 to be admitted as an exhibit in the proceedings.

The parties are to formulate further instruction to Dr W to enable him to complete his report making provision for those matters referred to in these Reasons.

In the event of the parties being unable to agree as to the further instruction to Dr W as required by these orders leave is granted to re-list the matter before me at each party’s risk as to costs.

The husband is to pay the additional cost incurred by Dr W in reinterviewing the parties and considering the material in Exhibit H1 and MFI2.

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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