Roberts and Pedrana and Ors (No. 2)

[2012] FamCA 505

FAMILY COURT OF AUSTRALIA

ROBERTS & PEDRANA AND ORS (NO. 2) [2012] FamCA 505

FAMILY LAW – EVIDENCE - Evidentiary ruling – Application to exclude evidence presented in the form of recordings.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Roberts

FIRST RESPONDENT: Mr N Pedrana

SECOND RESPONDENT: Mr V Pedrana

THIRD RESPONDENT: Ms C Pedrana

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1231 of 2011

DATE DELIVERED: 12 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12, 13, 14, 15, 18 & 19 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Lilley Dawson

THE FIRST RESPONDENT: In person

COUNSEL FOR THE SECOND AND THIRD

RESPONDENTS:

Mr Edmunds

SOLICITOR FOR THE SECOND AND

THIRD RESPONDENTS:

Westminster Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Brennan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym Roberts & Pedrana and Ors (No. 2) 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 1231 of 2011

Ms Roberts

Applicant

And

Mr N Pedrana

First Respondent

Mr V Pedrana

Second Respondent

Ms C Pedrana

Third Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application in the running of a trial to exclude evidence presented by the applicant in the form of recordings which, she says, she has had transcribed. The husband objects to it on the basis that the recordings were taken without his knowledge and that the transcripts are not accurate because they are only partially reporting what was recorded. The provisions of s 135 of the Evidence Act 1995 (Cth) cover the discretionary admission or refusal of evidence. That section provides that:

   The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

   (a)       be unfairly prejudicial to a party; or

   (b)       be misleading or confusing; or

   (c)       cause or result in undue waste of time.

2. Whilst I have focussed largely with the parties on the question of those three attributes, a significant issue is whether or not its probative value is substantially outweighed by the danger that one of those situations might arise.  This is a case in which there is very much a dispute about what actually occurred, and each of the parties has indicated to me this morning that credit is going to largely determine the outcome.  The probative value of this evidence is significant because the wife makes an allegation that the husband was violent towards her. 

3. Having regard to the definition of family violence, it seems to me that there is probative value in the material.  The question is whether or not it would be substantially outweighed by one of the three matters to which I have referred.  It is hard to see how this material could be unfairly prejudicial to the husband, having regard to the fact that he has, according to counsel for the wife, had an affidavit of documents as long ago as August last year in which the recordings were referred to as being available for inspection. 

4. It is hard, therefore, to see how he could not cross-examine on the accuracy of the transcript and, if necessary, have the formal recording played.  It is also hard to see how the evidence could be misleading or confusing if in fact it is an accurate reflection of what actually took place.  No doubt that can be tested by cross-examination as well.  It will certainly cause or result in an undue waste of time if it turns out that the evidence has probative value and it is not to be addressed properly.  It seems to me that this is not a case where the evidence should be excluded at all.  On the contrary, it seems to me to be of very significant probative value, and under those circumstances I permit the wife to lead the evidence.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 June 2012.

Associate: 

Date:  4 July 2012