McBride and Walton

[2009] FamCA 1003

FAMILY COURT OF AUSTRALIA

MCBRIDE & WALTON [2009] FamCA 1003

FAMILY LAW - APPEAL - From Court of summary jurisdiction - Appeal against the decision of the Local Court dismissing the mother’s Application for a grant of Anton Piller orders - Appeal upheld and Anton Piller orders made

Family Law Act 1975 (Cth)

APPLICANT: Ms McBride

RESPONDENT: Mr Walton

FILE NUMBER: NCC 2635 of 2009

DATE DELIVERED: 19 October 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 19 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Seaton, as agent for Central Coast Family Law

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. The appeal against the determination of the Local Court of New South Wales on 15 October 2009 to dismiss the Initiating Application filed by the mother on that day is upheld.

2. The mother shall serve the following documents upon the father, Mr Walton, by 5:00 pm on Wednesday, 21 October 2009:

   a.Initiating Application filed by the mother in the Local Court on 15 October 2009;

   b.Affidavit of the mother filed in the Local Court on 15 October 2009;

   c.Affidavit of the mother filed in the Family Court of Australia on 16 October 2009;

   d.Affidavit of Mr F filed in the Local Court on 15 October 2009;

   e.Notice of Appeal filed by the mother in the Family Court of Australia on 16 October 2009;

   f.Sealed copy of these Orders.

3. Forthwith, upon being served pursuant to Order 2 hereof, the father shall:

   a.Deliver up to Mr F all keys to the premises situate at and known as G property, New South Wales (“the premises”); and

   b.Accompany Mr F to the premises; and

   c.Open any safe located at the premises; and

   d.Permit Mr F, Mr C and the mother (“the nominated persons”) to enter and remain upon the premises, for a period not exceeding 3 hours concluding no later than 8.00 pm, for the purposes of searching for and taking into the custody of Mr F the following:

   i.All documents depicting or describing bestiality and/or child pornography, and for that purpose “document” has the meaning set out within s 25 of the Acts Interpretation Act 1901 (Cth); and

   ii.All computers, hard disks, external drives, memory sticks or other device which would enable computer records to be recorded, transmitted, or retained.

4. Except as is necessary to comply with the obligations imposed under these Orders, while the nominated persons are searching for the documents and items referred in Order 3(d) above, the father and his agents and servants are restrained from attending at or upon the premises.

5. The mother shall cause Mr F to:

   a.Forthwith upon execution of Order 3, compile an inventory of the items taken into custody by him from the premises pursuant to these Orders; and

   b.Within 72 hours of execution of Order 3, file and serve an affidavit in these proceedings setting out the facts and circumstances of the execution of these orders, which affidavit must annex a copy of the inventory compiled under Order 5(a); and

   c.Keep the documents and items taken into custody from the premises in his safe keeping pending further order.

6. These proceedings are to be listed for further directions before a Registrar on the date to be notified in writing to the parties.

NOTATIONS

A.The Court notes the undertaking of the mother, Ms McBride, to pay as directed by the Court to any person restrained or affected by the restraints imposed by the orders granted today, or of any continuation thereof, such compensation as the Court may in its discretion determine.

B.The Court notes the undertaking of the mother that any documents, items, or other information obtained pursuant to these orders will not, other than with the express permission of the Court, be:

a.Used except for the purpose of these proceedings; and

b.Disclosed, or permitted to be disclosed, to any persons other than the counsel and solicitors retained on behalf of the mother in these proceedings, and Mr F.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2635  of 2009

MS MCBRIDE

Applicant

And

MR WALTON

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before the Court for determination is a Notice of Appeal filed on 16 October 2009.  The appeal is against the decision of a State Magistrate sitting at the Local Court of New South Wales to dismiss an Application filed in that Court on 15 October 2009 seeking a grant of Anton Piller orders.

2. The applicant mother relies, for the purposes of determination of her appeal, upon the following documents:

   a)Notice of Appeal filed on 16 October 2009;

   b)Her Initiating Application filed in the Local Court on 15 October 2009;

   c)Her Affidavit filed in the Local Court on 15 October 2009;

   d)Her Affidavit filed in the Family Court of Australia on 16 October 2009; and

   e)The Affidavit of Mr F filed in the Local Court on 15 October 2009.

3. The applicant is Ms McBride.  The respondent is Mr Walton.  Those parties are married but are now separated.  They separated in February 2008.  There were three children born to that marriage, namely W, born in August 1999, S, born in March 2002, and B, born in February 2007.

4. On 22 September 2009, the father filed an Initiating Application and an affidavit in support in the Local Court seeking final and interim parenting orders in respect of those three children.  The father’s Application was made returnable before the Local Court on 16 October 2009.

5. Within the context of those pending proceedings, the mother filed her Initiating Application on 15 October 2009.  That Application was filed secretly with no notice to the father, and in it she sought Anton Piller orders on an ex parte basis. 

6. The Initiating Application of the mother was heard and determined on that same day, namely 15 October 2009, in the absence of the father.  Her application was dismissed.  It is that decision against which she now appeals.

7. On the following day, namely 16 October 2009, on the return of his own substantive Application, the father apparently appeared before the Local Court.  I am informed from the bar table that nothing was mentioned to the father on that day by either the mother or the Local Court about the interlocutory application which had been heard and determined in his absence the day before.

8. On 16 October 2009, no decision was made by the Local Court with respect to parenting orders.  The only order made by the Local Court that day was to transfer the entirety of the proceedings to the Federal Magistrates Court sitting at Newcastle. 

9. The mother filed her appeal against the determination of the Local Court on 15 October 2009 and the proceedings have now come before this Court for consideration because of the sensitivity and urgency of the appeal.

10. The appeal against the determination of the State Magistrate is in the nature of a hearing de novo.  There is no need for the mother to demonstrate any error of law. 

11. With respect to the merit of her application underlying the appeal, the mother essentially contends as follows. The father has had a long standing interest in pornography.  That interest has not merely been recreational, but also a business interest.  He has been, on the evidence, involved in the production and dissemination of pornography for profit.  The pornography in which the father is allegedly involved is not mainstream pornography.  It is alleged that it involves bestiality and child pornography.

12. The extent of the father’s personal interest in that sort of pornography self-evidently has the capacity to influence the parenting orders that will ultimately be made and affect the children of the parties.

13. The mother asserts, from her history with the father, that he has images of such pornography stored on his computer from which the father allegedly derives gratification.

14. If the father is appraised of the present application there is a risk that he will destroy the pornography, and hence the evidence which may be called upon by the mother in support of her case in these parenting proceedings.  There is evidence that the father has arranged for the destruction of computer files containing such pornographic material in the past when he feared investigation by one or more authorities. 

15. The mother in these proceedings has given an undertaking as to damages.  She has deposed to such an undertaking in her affidavit.  Through her solicitor, the mother has also proffered to the Court an undertaking as to the confidentiality of the material that may be recovered in reliance upon the Anton Piller orders that I intend to make.

16. The evidence adduced in these interlocutory proceedings satisfies me, firstly, that there is a probability that pornography exists saved in the computer hard drive of the father, and secondly, that there is a real chance that that material will be destroyed by the father if he was aware of this application, in which case the mother would be deprived of important corroborative evidence.

17. I am satisfied that the application for Anton Piller orders ought be granted and as a consequence I uphold the appeal and make orders that I intend to now publish.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin

Associate: 

Date:  19 October 2009