Najm & Najm - [2022] FedCFamC1F 87

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Najm & Najm [2022] FedCFamC1F 87

File number(s): SYC 6820 of 2017

Judgment of: CAMPTON J

Date of judgment: 21 February 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Admissibility of transcripts of a translated audio recording made by the paternal grandfather of a phone call between the mother and another person, to which the paternal grandfather was not a party – Where the recordings are prima facie illegally obtained unless an exclusionary provision yet to be determined – Whether s 135 or s 138 of the Evidence Act 1995 (Cth) permits the admission of the evidence – Where the transcripts are deficient – Probative value of each transcript is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the mother – Transcript inadmissible

Legislation:
Family Law Act 1975 (Cth) Part VI, Division 12A, s 69ZT

Evidence Act 1995 (Cth) ss 135, 138, 140

Surveillance Devices Act 2007 (NSW) s 7

Cases cited:
Gorman & Huffman & Anor [2016] FamCAFC 174

Masri and Masri [2017] FamCA 539

Parker v Comptroller-General of Customs (2009) 83 ALJR 494

Division: Division 1 First Instance

Number of paragraphs: 55

Date of hearing: 21 February 2022

Place: Sydney

Counsel for the Applicant: Mr Wong

Solicitor for the Applicant: East Sydney Law Pty Ltd

Solicitor for the Respondent: Litigant in person (did not participate)

Counsel for the Second Respondent: Mr Eardley

Solicitor for the Second Respondent: Emanuel Refenes Solicitor

Solicitor for the Independent Children’s Lawyer: Ark Law Lawyers

Counsel for the Independent Children’s Lawyer: Ms McConaghy
ORDERS

SYC 6820 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR NAJM

Applicant

AND:
MR B NAJM

First Respondent

MS FARHAN

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

21 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The reports of Mr C, an accredited K Language/English and English/K Language translator from the National Accreditation Authority for Translators and Interpreters, being Exhibit 1 to the affidavits of the paternal grandfather filed on 16 April 2021 and 23 December 2021 are struck out.
2.These proceedings are adjourned part heard to 11.00 am on 23 February 2022.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Najm & Najm has been approved pursuant to s 121(9)(g) of the

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 Najm & Najm

Details

AGLC: Najm & Najm [2022] FedCFamC1F 87
Case: [2022] FedCFamC1F 87
Decision Date

CaseChat Overview and Summary

The case of Najm & Najm involved proceedings related to the parenting of two children, X and Y, born in 2010. The applicant, Mr Najm, the paternal grandfather, sought sole parental responsibility of the children and specific visitation orders. The mother opposed these applications. The trial commenced on 21 February 2022 and was listed over four days. The father had ceased participation in the proceedings since 2019, choosing to support the paternal grandfather's case. The mother objected to the admissibility of certain translated transcripts of a 2014 recorded conversation between herself and another individual, Ms F, which the paternal grandfather had secretly recorded. The objections were based on the improper and illegal nature of the recording under the Surveillance Devices Act 2007 (NSW) and the deficient quality of the transcripts.

The court addressed the objection under s 138 of the Evidence Act 1995 (Cth), which requires the exclusion of improperly obtained evidence unless its admission is justified. The court found that the recording was indeed improperly obtained as the paternal grandfather was not a party to the conversation and did not have consent to record it. However, the court also considered the probative value and importance of the evidence in relation to the proceedings. Despite the relevance of the recordings to the issues at hand, the court found the probative value to be substantially outweighed by the danger of unfair prejudice to the mother due to the incomplete and unreliable nature of the transcripts. The marked differences between the translations further complicated the ability to ascertain the content and context of the conversation. Consequently, the court exercised its discretion under s 135 of the Evidence Act to exclude the transcripts, finding them inadmissible.

The court struck out the reports of the translator, Mr C, and ordered that the proceedings be adjourned part heard to 11.00 am on 23 February 2022. This decision ensured that the evidence, which was potentially misleading and prejudicial, would not be admitted in the trial, thereby protecting the fairness of the proceedings for all parties involved.

Orders