Wednesday, 27 May 2009

Family Court: beware of the private eye

Older practitioners remember how divorces used to be obtained pre the Family Law Act: privates eyes would be engaged to spy on a party with the hope that they would come up with incriminating footage, showing the party in a romantic liaison with someone other than their spouse.

As illustrated in the recent Family Court case of Gallardo and Gallardo, private eyes can have their uses, especially when a party says that they have an incapacity for work, but appear from the video footage to be quite capable of work, as seen through the eyes of Judicial Registrar Johnston:


The husband is 46 years of age and there are some real limitations in terms
of his health....(H)e was released on health grounds from the New South Wales
Public Service in February 2008. There was no medical evidence in proper form
before the Court to set out the current state of his health. But in the past he
has been diagnosed as having been suffering from post traumatic stress
disorder....(I)n 2000 the husband suffered an injury at work. He was assessed as
having suffered a 20 percent loss of his right arm at or above the level of the
elbow and compensated for this. By April 2003 his condition was said to have
stabilised. In any event he was able to continue working in his capacity as a
supervisor for some years after this time. In May 2005 the husband suffered a
most distressing incident which involved actual physical injuries to him. In
short, he was attacked by two men and one inflicted serious injuries on him
using a metal bar.

Clearly not only did the husband suffer from serious physical injuries but
there were also serious psychological consequences. In mid-2007 the husband was
accepted by the New South Wales Public Service as being permanently unfit for
the full range of the duties of his position and he was granted a partial and
permanent disability benefit. For the purposes of his application for this
benefit he was diagnosed as suffering from Post Traumatic Stress Disorder and
Chronic Pain Syndrome.

It was submitted on behalf of the wife that the Court should be
cautious about accepting this as evidence of the husband’s current condition.
This was on the basis that the husband has been in receipt of ongoing treatment
both from a psychiatrist and from his medical practitioner, yet no evidence was
put by such experts in relation to his current state of health.

In addition, the wife engaged a private detective to undertake
surveillance of the husband particularly in relation to his attendance at the
gymnasium owned and operated by his brother. The private detective, Mr C filmed
the husband on a number of occasions during July and August 2008 in attendance
at the gymnasium. From my viewing of this film, it showed the husband in
attendance at the gymnasium, it depicted him showing the private detective some
of the gymnasium equipment, it also depicted him at the reception desk and at
the computer.
This was the basis of a submission on behalf of the wife that
whatever the husband asserts his ongoing injuries to be they have not prevented
him from attending at the gymnasium and apparently working at the gymnasium.
This was denied by the husband who said that as part of his rehabilitation
following his injuries he regularly attends the gymnasium usually from 6:30 am
and undertakes a program of exercises. He said that he often uses the computer
at the gymnasium and will occasionally speak to clients of the gymnasium. He
said that this contribution by him to the gymnasium is one which has been
ongoing. He said that the gymnasium has always struggled and that various
members of his family have helped out at the gymnasium. He said that he was
doing nothing more than that and that in fact at all times when he was at the
gymnasium his brother’s partner, who is the manager, would have also been in
attendance at the gymnasium.

In respect of this matter I must say that I have some doubts about the
veracity of what the husband is saying. It would have been a simple matter for
him to tender evidence in the proceedings from his brother and his brother’s
partner to corroborate his version of his capacity in attending the gymnasium.
But in any event whether or not the husband may be in receipt of regular
payments for his contributions at the gymnasium, in my view what this evidence
is significant for is that it indicates that the husband has the capacity to be
able to undertake at least some limited work of this nature.

As also indicated above, the husband successfully applied to his
superannuation fund to pay out to him his benefits in the superannuation fund on
the basis of partial and permanent invalidity. Over the strong objection of
learned counsel for the wife I admitted into the evidence a confidential medical
report on the incapacity asserted by the husband for the purposes of this
application. This report was by a Dr V. Amongst other matters included in
the report, Dr V reported that in his opinion the husband was still able to
be employed in some form of paid occupation and gave as an example office work
perhaps involving the use of a computer.
The conclusion that I arrive at in
relation to all of this is that clearly the husband has been unable to work in
his previous full-time capacity. But he has not put any evidence before the
Court to suggest that he would not be able to work in some other capacity such
as the type of work involved in operating the gymnasium or some form of clerical
work which, in the opinion of Dr V, he would be able to do. The husband’s
income is $532 per week which he receives from the worker’s compensation
insurer.

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