Warnell and Allenby and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARNELL & ALLENBY & ANOR [2020] FCCA 2517

Catchwords:
FAMILY LAW – Parenting – interim hearing – application to exclude evidence – video recording of an altercation between the mother and the father taken by the father’s 14 year old child – whether the recording was illegally obtained – whether the altercation between the father and the mother was a “private conversation” – whether the probative value of the recording is outweighed – video recording admitted into evidence.

Legislation:

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

Listening and Surveillance Devices Act 1972 (SA), s.3

Surveillance Devices Act 2016 (SA), ss.3(1), 4(1)

Cases cited:

Coulter & Coulter (No.2) [2019] FCCA 1290

Applicant: MS WARNELL

First Respondent: MR ALLENBY

Second Respondent: MS MAXWELL

File Number: ADC 3236 of 2020

Judgment of: Judge Kari

Hearing date: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Adelaide

Delivered on: 9 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Boyle

Solicitors for the Applicant: Fne Lawyers

Counsel for the First Respondent: Mr Roberts

Solicitors for the First Respondent: Lachlan Mcauliffe Barrister & Solicitor

No appearance on behalf of the Second Respondent

ORDERS

1. That the oral application by the mother to exclude the video recording taken on 27 June 2020 be dismissed.

2. That within 7 days, the father file and serve an Affidavit annexing a USB containing a copy of the video recording taken by the father’s child B on 27 June 2020.

3. That the proceedings be listed for interim hearing at 2:30pm on 16 September 2020 (1.5 hours allowed), with such hearing to be conducted by Microsoft Teams.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3236 of 2020

MS WARNELL

Applicant

And

MR ALLENBY

First Respondent

And

MS MAXWELL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the infant child X who was born in 2019 and is 14 months old.

2. The parenting arrangements for X are the subject of dispute, with urgent proceedings having been commenced by the mother on 19 July 2020.

3. While the interim arrangements for X are very much live and will require urgent consideration, a preliminary issue has arisen with respect to evidence that the father wishes to rely upon for the purposes of that hearing.

Brief background

1. The brief background of these parties and what has led them to these proceedings is set out hereunder.

2. The father was born in 1968 and he is 52 years of age and he is an Australian citizen.

3. The mother was born in 1992 and she is 28 years of age. The mother is not an Australian citizen, she was born in Country C and she is currently in Australia as a result of a temporary visa.

4. The parents are not married.

5. The father is married to a woman known as “Ms D”. That marriage…