Tripp and Tripp

[2010] FamCA 691

FAMILY COURT OF AUSTRALIA

TRIPP & TRIPP [2010] FamCA 691

FAMILY LAW – CHILDREN – Child related proceedings – audio recordings said to have been made by mother during an interview between the single expert and the subject children – application that a copy of the audio recordings and transcript of their content be given to the single expert prior to her giving evidence – issues of the interests of justice and public interest – copy of recordings and transcript to be provided to the single expert

Family Law Act 1975 (Cth)
Surveillance Devices Act 2007 (NSW)

APPLICANT: Mr Tripp

RESPONDENT: Ms Tripp

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7895 of 2007

DATE DELIVERED: 5 August 2010

PLACE DELIVERED: Sydney

DATE HEARD: By written submissions

JUDGMENT OF: Justice Fowler

REPRESENTATION

COUNSEL FOR THE APPLICANT: The father sought not to be heard on the application

COUNSEL FOR THE RESPONDENT: Mr Richards

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Gillies

Orders

1. Leave is granted to the Independent Children’s Lawyer to make available to the independent expert, Dr M, for review copies of the audio recording procured by the mother of the interviews between Dr M with the relevant persons and children in these proceedings and a document said to be a transcript thereof and produced by the mother on call to the Independent Children’s Lawyer.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7895 of 2007

MR TRIPP

Applicant

And

MS TRIPP

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. During the course of these proceedings the mother procured, it appears contrary to the provisions of the Surveillance Devices Act 2007 (NSW), recordings of interviews between the Court-appointed independent expert, Dr M, and the children of the marriage.

2. The expert has made a report to the Court.  The mother challenges not only some of the conclusions of the report but whether it accurately sets out what occurred in the conference.

3. The recordings, and what is said to be a transcript of them, have been produced to the applicant father and the Independent Children’s Lawyer pursuant to a call to produce the documents.

4. There is no evidence that the recordings were made other than without the consent of Dr M or that she had any knowledge of them.

5. The existence of the recordings was revealed by the mother in the pressure of cross-examination by the Independent Children’s Lawyer. Prior to that occasion, the mother gave no hint of their existence.

1. It is asserted by the mother that Mr Richardson SC, who appeared on a day when Dr M was thought likely to give her evidence (which event did not occur on that day and which is to occur at a future date) has been retained specifically for the purpose of cross-examining the witness on the material contained in the recordings.

2. It is not known at this time whether or not the recordings are to be tendered.  I have a discretion in the circumstances of this case to permit them to come into evidence, notwithstanding any illegality involved in their procurement, if I come to the conclusion that their introduction into evidence would serve the interests of justice.

3. That, however, is not the issue presently before the Court and the question of the exercise of that discretion must abide the use made in the proceedings (if it is made) of the recordings.

4. What is asked of the Court is that the copy of the recordings and the transcript of their content be made available to the expert witness prior to her giving her evidence.

5. I afforded the parties the opportunity to make submissions in writing in relation to the orders sought by the Independent Children’s Lawyer and the Court received submissions from counsel for the Independent Children’s Lawyer.  I did not receive submissions from the father and the mother sent them only after it was out of time and only after it was announced that judgment was to be delivered.  I have nevertheless read those submissions.

6. It might be asserted that, if the transcript and recording are made available to the independent expert, some forensic advantage might thereby be lost.  In my view, I am entitled to take into account that the recordings were made of a conversation which took place some time ago and of which conversation the witness was part.  The witness is an independent expert.  The mother and her counsel have heard the recordings.  They are asserted to be a contemporaneous note of what was recorded in a conversation to which the witness was party.  The witness has had made available to her the evidentiary material filed in this case, including recordings taken by the mother of conversations she had with her daughter without her daughter’s consent.

7. The interests of justice required to be served in this matter are not only those within the narrow confines of the resolution of disputes between these parties but those of the public interest.  This case was originally set for a period of four days and has now proceeded for a period of eight days and commenced its hearing on 30 October 2009 when the first day of the Less Adversarial Trial took place.  It is fixed for a further two days of hearing.

1. A major issue which existed at the beginning of the case concerned an allegation made by the mother of inappropriate sexual dealing between the father and one of the parties’ daughters, was abandoned, but not until after some days of the trial.  There remains an issue of whether the child has been subject of some abuse at the hands of the father’s mother.

2. It seems to me that the provision of the recording and the transcript to the witness might considerably shorten the proceedings and serve the interests not only of justice and of the public, who expect the court system to act with efficiency, but also of these parties.  There will be less time and therefore a reduction in attendant costs in my view spent on the unnecessary and usually lengthy process of exploring a witness’s memory if the recordings can be now made available to her.

3. There will still be the opportunity, if required, to put to the witness any question which might have been put had the recordings not been made available, including any suggested inconsistency with the report but we will not have to be diverted by problems of recall.

4. In addition, given the nature of the recordings it may be that the witness wants to consider putting to me submissions in opposition to their use and, in my view, in order to fairly allow her to consider whether or not she wishes to do so she must be made aware of them and have the opportunity to review them.

5. In all the circumstances, I order that the Independent Children’s Lawyer may make a copy of the recordings taken and produced to her together with the transcript said to be of those recordings, to the independent expert, Dr M, for her review.

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

Associate: 

Date:  5 August 2010