Newitt and Falcone - [2012] FamCA 1015

FAMILY COURT OF AUSTRALIA

NEWITT & FALCONE

[2012] FamCA 1015

FAMILY LAW – Restraint of solicitor because client illegally records conversations with spouse which include discussions with her solicitor.

Family Law Act 1975 (Cth)

Beck and Beck (2004) FLC 93-181
Gitane and Velacruz (2007) FLC 93-309
GT Corporation Pty Ltd v Amare Safety Pty Ltd [2007] VSC 123
Kallinicos and Anor v Hunt and Ors [2005] NSWSC 1181
Lindon v Commonwealth [1996] HCA 14; (1996) 136 ALR 251
Pascot and Pascot [2010] FamCA 644
Sutera and Jordan [2009] FamCA 844

APPLICANT:

Ms Newitt

RESPONDENT:

Mr Falcone

FILE NUMBER:

MLC

6160

2012

DATE DELIVERED:

6 December 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Richard Ingley

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Robinson

SOLICITOR FOR THE RESPONDENT:

Westminster Lawyers

Orders

That the husband forthwith deliver up to the solicitors for the wife a copy of all original audio or visual recordings obtained by him by any surveillance device used subsequent to the parties’ separation.
That until further order, the husband be restrained from communicating the contents of any recorded material that contains privileged communications between the wife and her legal practitioners to any legal practitioner or any other person.
That until further order, the husband be (and is hereby) restrained by injunction from using any surveillance device in relation to the wife and/or her parents.
That the wife’s application for interim and interlocutory orders filed 26 November 2012 and the husband’s response seeking interim and interlocutory orders filed 22 November 2012 are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Subject to submissions to the contrary, the costs of both parties are reserved.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6160 of 2012

Ms Newitt

Applicant

And

Mr Falcone

Respondent

REASONS FOR JUDGMENT

In this interim proceeding, I heard submissions and the parties relied upon affidavit material which could not be tested because of the nature of the court list. As such, I am not in a position to make findings of fact other than those which are obvious.
In her application in a case filed 26 November 2012 (which was an amended application) the wife sought orders roughly in the following terms:
(a)that Westminster Lawyers be restrained from acting on behalf of the husband in the proceedings;
(b)that the husband deliver to the wife’s lawyers all original recordings (and consequential transcription) of the wife and her parents;
(c)that the husband disclose all surveillance devices used by him which recorded conversations involving the wife and her parents;
(d)that the husband be restrained from communicating the contents…

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 Newitt and Falcone

Details

AGLC: Newitt and Falcone [2012] FamCA 1015
Case: [2012] FamCA 1015
Decision Date

CaseChat Overview and Summary

In *Newitt & Falcone*, the Family Court of Australia considered an application by the wife, Ms Newitt, against the husband, Mr Falcone. The dispute centred on the husband's alleged illegal recording of conversations, including those between the wife and her legal practitioners, and the subsequent use or potential use of this material in family law proceedings. The wife sought orders restraining the husband's solicitors from acting for him, requiring the delivery of all recordings, and enjoining the husband from communicating the contents of privileged communications.

The primary legal issues before the Court were whether the husband's solicitors should be restrained from acting for him due to their potential access to privileged information obtained by their client through surreptitious means, and whether the husband should be restrained from using any surveillance devices and compelled to deliver up all recordings obtained. The wife also sought orders regarding the release of funds for credit card payments and supervision costs, and the husband sought summary dismissal of the wife's application.

The Court reasoned that while it possessed jurisdiction to restrain solicitors to protect the integrity of the judicial process, such a power was discretionary and should not be exercised without good reason, particularly given a litigant's right to choose their representation. Applying this principle, the Court found that the evidence did not establish that the husband's solicitors had been privy to any privileged communications. The husband's own evidence and a letter from his solicitor indicated that the solicitor was unaware of the content of any privileged conversations and had not been provided with recordings containing such discussions. Consequently, the application to restrain the solicitors was dismissed. The Court also dismissed the husband's application for summary dismissal, finding that the wife's application was not doomed to fail, particularly concerning the issues of solicitor restraint and the use of recorded materials.

Regarding the other orders sought, the Court dismissed the wife's application for funds to be released from savings to pay credit card debts and supervision costs, citing a lack of corroborating evidence and the potential to override previous orders of the Court. The Court ordered that the husband forthwith deliver up to the wife's solicitors copies of all original audio or visual recordings obtained by him by any surveillance device used subsequent to the parties' separation. Furthermore, the husband was restrained, until further order, from communicating the contents of any recorded material containing privileged communications between the wife and her legal practitioners to any legal practitioner or any other person. The husband was also restrained by injunction from using any surveillance device in relation to the wife and/or her parents. The wife's application for interim and interlocutory orders, and the husband's response seeking interim and interlocutory orders, were otherwise dismissed. Costs were reserved.

Orders