Ziomek and Behn

[2019] FamCA 262

FAMILY COURT OF AUSTRALIA

ZIOMEK & BEHN [2019] FamCA 262

FAMILY LAW – PRACTICE AND PROCEDURE – Reopening of evidence – Where the mother seeks to reopen her evidence to adduce a copy of the transcript of proceedings between the father and the State in the Local Court of New South Wales – Where the father opposes that application on the basis that the mother’s solicitor may have altered the transcript proposed to be tendered – Where the mother’s solicitor has sworn an Affidavit to the effect that the transcript proposed to be tendered is a true copy of the document sent to him by the Local Court – Where the Court accepts the veracity of the documents proposed to be tendered – Application allowed.

APPLICANT: Ms Ziomek

RESPONDENT: Mr Behn

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 5 of 2014

DATE DELIVERED: 31 January 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland DCJ

HEARING DATE: 31 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carr

SOLICITOR FOR THE APPLICANT: David H Cohen & Co.

SOLICITOR FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The mother be granted leave to reopen her evidence for the purpose of adducing a copy of the transcript from the proceedings of the Local Court of New South Wales at Suburb F on 14 May 2018 and 23 July 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 5 of 2014

Ms Ziomek

Applicant

And

Mr Behn

Respondent

EX TEMPORE JUDGMENT

1. In this matter, the Respondent mother has sought to reopen her case for the purpose of tendering a copy of the transcript from the proceedings of the Local Court of New South Wales at Suburb F on 14 May 2018 and 23 July 2018.  Those proceedings involved an action by the State against the father in respect to two events which the mother contends occurred on 12 January 2019 and 26 January 2019. The mother alleges that the first event involved the father flicking the child on the forehead and that the second event involved the father slapping the child over the face.

2. The Independent Children’s Lawyer has no objection to the case being reopened for the purpose of that tender being made. 

3. The Applicant father opposes the mother’s application to reopen her evidence on the basis that he contends that the transcript, which is proposed to be tendered, was provided to the mother’s solicitor in electronic form. In those circumstances he contends that it is possible that the transcript may have been altered before being printed.  In other words, the father asserts that the copy of the transcript that the mother proposes to tender may not be accurate.

4. The manner in which the transcript was obtained is set out in the affidavit of the mother’s solicitor, Mr David H. Cohen, filed on 29 January 2019.  I am satisfied, having regard to the contents of that Affidavit, the mother’s solicitor made inquiries of the Registrar of the Local Court in order to obtain the transcript and, in his capacity as an Officer of the Court, has sworn that the document annexed to his Affidavit is an accurate transcription of the electronic recording of proceedings that occurred in the Local Court involving the father and the State.

5. In the Affidavit, the mother’s solicitor also records his attempt to obtain a certification of the transcript and the response he received, which included a copy of an email that he received from an Officer of the Local Court at Suburb F, certifying that the attached transcripts are transcripts of the proceedings that were recorded on 14 May 2018 and 23 July 2018, at the Local Court of New South Wales at Suburb F.  That communication also confirms that the transcripts having been prepared by direction of the Reporting Services Branch, on its behalf.

6. In circumstances where the mother’s solicitor, as an Officer of the Court, has sworn that the transcripts that are proposed to be tendered are the transcripts as provided to him in electronic form by the Local Court, I accept the veracity of those documents and propose to permit the mother to reopen her case for the purpose of making that tender.

I certify that the preceding six (6) paragraphs are a true copy of the ex tempore judgment of the Honourable Deputy Chief Justice McClelland delivered on 31 January 2019.

Associate: 

Date:              29 April 2019