Masri & Masri - [2017] FamCA 539

FAMILY COURT OF AUSTRALIA

MASRI & MASRI

[2017] FamCA 539

FAMILY LAW – EVIDENCE – Voir Dire – Where each parent seeks to have recorded conversations admitted into evidence – Where the recordings were illegally obtained – Where each party seeks to use the recording to corroborate their version of events – Where the recordings are not essential to proving any fact in issue – Where the desirability of the admitting the evidence does not outweigh the undesirability of admitting evidence that has been illegally obtained.

Evidence Act1995 (Cth) s 138

Family Law Act 1975 (Cth) s 69ZT
Surveillance Devices Act 2007 (NSW) ss 4, 7

Gorman & Huffman and Anor [2016] Fam CAFC 174

APPLICANT:

Ms Masri

RESPONDENT:

Mr Masri

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

5617

2014

DATE DELIVERED:

27 July 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Judge

SOLICITOR FOR THE APPLICANT:

AJ & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Browns The Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The mother’s application to admit evidence made on 17 July 2017 is dismissed. The evidence is not admitted.
The father’s application to admit evidence made on 18 July 2017 is dismissed. The evidence is not admitted.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5617 of 2014

Ms Masri

Applicant

And

Mr Masri

Respondent

REASONS FOR JUDGMENT

introduction

In the course of parenting proceedings each of the parents sought to rely upon a recording of a conversation between the parties which was considered in a voir dire at the commencement of each respective case. In each case I refused to admit the evidence in question and indicated I would publish my reasons for doing so at a later date. These are those reasons.

Background

The parents of two children aged six and three are engaged in a parenting dispute regarding the children’s future care.
The parents separated in November 2014 following a four and half year marriage. The elder child, a girl was three and half and the younger child a boy was almost one when the parties separated.
A short time prior to separation the mother contends that there was an incident in which the father smacked the three year old child…

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 Masri & Masri

Details

AGLC: Masri & Masri [2017] FamCA 539
Case: [2017] FamCA 539
Decision Date: 27 July 2017

CaseChat Overview and Summary

In *Masri & Masri*, the Family Court of Australia considered an application by the mother and a separate application by the father concerning the admissibility of certain evidence. The dispute arose in the context of family law proceedings.

The primary legal issue before Hannam J was whether specific evidence, tendered by each parent on separate dates, should be admitted for consideration by the court. The court was required to determine the admissibility of this evidence in accordance with the relevant rules of evidence and the Family Law Act 1975 (Cth).

Hannam J dismissed both the mother's application to admit evidence made on 17 July 2017 and the father's application to admit evidence made on 18 July 2017. The court found that the evidence tendered by each party was not admissible. The reasons for this decision were not detailed in the provided text, but the outcome was a clear rejection of both applications.

Orders

Orders of the court

The mother’s application to admit evidence made on 17 July 2017 is dismissed. The evidence is not admitted.

The father’s application to admit evidence made on 18 July 2017 is dismissed. The evidence is not admitted.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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