Almeras & Velez (No 2)
[2024] FedCFamC2F 1117
•9 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Almeras & Velez (No 2) [2024] FedCFamC2F 1117
File number(s): WOC 192 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 9 August 2024 Catchwords: FAMILY LAW – EVIDENCE – CONTRAVENTION – admissibility of evidence – whether videos can be accepted into evidence – whether recordings of the father were illegally obtained – where the recordings reasonably necessary to protect the children’s lawful interest – if the recordings were illegal can they still be admitted in the Court’s discretion. Legislation: Evidence Act 1995 (Cth) ss 138, 189
Family Law Act 1975 (Cth) s 4AB
Surveillance Devices Act 2007 (NSW) s 7
Cases cited: Corby & Corby [2015] FCCA 1099
DW & R [2014] NSWCCA 28
Janssen & Janssen [2016] FamCA 345
Nanosecond Corporation Proprietary Limited v Glen Carron Proprietary Limited [2018] SASC 116
Sepulveda v The Queen [2006] NSWCCA 379
Yagin & Harstad [2024] FedCFamC1F 202
Division: Division 2 Family Law Number of paragraphs: 42 Date of last submission/s: 7 August 2024 Date of hearing: 7 August 2024 Place: Hobart via Microsoft Teams Counsel for the Applicant: Mr Mountasellem Solicitor for the Applicant: Dgb Lawyers Counsel for the Respondent: Ms An Solicitor for the Respondent: Charis Law Pty Ltd ORDERS
WOC 192 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ALMERAS
Applicant
AND: MS VELEZ
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.The seven video recordings exhibited as VA2 in the voire dire be admitted as evidence in the substantive contravention proceedings.
2.These proceedings are adjourned part heard to 10:00am 27 September 2024 at the Federal Circuit and Family Court of Australia at City B with all parties granted leave to appear by Microsoft Teams.
3.The transcript of the Reasons for decision given today is to be placed on the court file.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
These are the published version of Reasons delivered rem parte on 9 August 2024. The Reasons have been slightly altered for ease of reading.
This is an application for contravention filed by Mr Almeras (‘the Father’) against Ms Velez (‘the Mother’) on 3 May 2024. The contravention application alleged that the Mother contravened an Order made 9 May 2023 (‘the Order’) on various dates throughout 2023 and 2024 by failing to allow the Father to spend time with the parties' child, X born in 2016.
The hearing commenced on 8 August 2024. The first day was entirely taken up with preliminary issues, including objections to certain material being received into evidence.
One such objection was to the Court receiving into evidence seven short videos. The Court conducted a hearing via voir dire pursuant to section 189 of the Evidence Act 1995 (Cth) (‘Evidence Act’) in relation to this issue. The relevant videos were referred to in an affidavit of a child, Y.[1] This affidavit had been received by the Court pursuant to section 100B(1) of the Family Law Act 1975 (Cth) (‘the Act’). Y was also to give evidence in the proceedings but was unavailable at the time of the hearing. There was an argument as to whether Y's affidavits[2] should be read into evidence given her unavailability. Ultimately, the Court decided that Y's affidavits were to be received.
[1] Affidavit of Y filed 13 June 2024.
[2] A further affidavit was filed on 27 June 2024 as supplementary to her first affidavit.
At paragraph 11 and following of Y's affidavit, she explained that she commenced video recording interactions with her Father from about mid-2023 because her Father's violence towards her had ‘become so frequent and distressing.’
Her affidavit then goes on to recite what is contained in each of the seven videos (noting that the seventh video was recorded by X). For the voir dire, the videos were played in open Court. Having watched the videos, I am satisfied that the descriptions of what was said in each of the videos, as set out in Y's affidavit, are accurate. The videos are a distressing viewing. All, but for the last video, evidenced the Father yelling in an aggressive manner that would, I have no doubt, left anyone — let alone a child — scared and anxious.
The image of him hitting himself in the head in one of the videos was most confronting. I have little doubt that his behaviour as captured in the first six videos meets the definition of "family violence" set out at section 4AB of the Act:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.[3] (original emphasis).
[3] Family Law Act 1975 (Cth) ss 4AB(1) (‘FLA’).
Other examples of family violence at section 4AB include repeated derogatory taunts.[4] The seventh video was recorded by X. All one can see is X's legs in the video, seemingly while sitting in the back of a car. One can hear the Father — who is driving — speaking in a calm manner, denigrating the Mother. This behaviour may also meet the definition of ‘family violence’.
[4] Ibid ss 4AB(2)(d).
The Father’s Submissions
Counsel for the Father, Mr Mountasellem, argued that the videos should not form part of the evidence in these proceedings because they had been recorded without the Father's knowledge nor consent.
It was submitted that pursuant to section 7 of the Surveillance Devices Act 2007 (NSW) (‘the Surveillance Devices Act’), the recording of private conversations without the consent or knowledge of those recorded is unlawful unless certain exceptions are met as set out in that legislation. The only relevant exception that could possibly apply, he submitted, is that set out at sub-section 7(3)(b)(i):
A principal party to the conversation consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of the principal party.
He submitted that there is no evidence to establish that Y's secret recording of her Father was reasonably necessary for the protection of her lawful interests. He submitted that the only evidence that she puts forward is that at paragraph 11 of her affidavit:
My Father's violence against me became so frequent and distressing. I began to video record some instances when I remembered to…
He submitted that this evidence was insufficient to establish that the recording of her Father was reasonably necessary. Consequently, the taking of the videos was illegal and the Court will need to consider section 138 of the Evidence Act to determine whether the improperly obtained material can be admitted into evidence:
Discretion to exclude improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject - matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
He submitted that the Court should not exercise its discretion to exclude the evidence as the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence, having regard to the matters set out in sub-section 138(3). He submitted that although the videos have relevance to the current proceedings and, in particular, the Mother's defence that she had a reasonable belief that X was at risk in the Father's care, the gravity of the impropriety in secretly filming the Father outweighs the benefits of receiving the evidence. This is particularly so in circumstances where the Father is unable to cross-examine Y —because she was apparently unavailable. He is therefore unable to inquire as to the circumstances that led to the making of the videos and there is a risk that the videos will not be viewed in their full context.
The Mother’s Submissions
Ms An, solicitor advocate for the Mother, submitted that the videos should be received. Her argument had several limbs.
First, that the conversation that Y recorded was not private as required by section 7(1) of the Surveillance Devices Act. A "private conversation" is defined in the Act and means:
...any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably be expected that it might be overheard by someone else. (emphasis added).
It was submitted that this was particularly the case in relation to the video which not only involved Y and her Father, but also the Father's partner. It was argued that the definition of "private conversation" in the legislation is not met as the evidence did not establish that the words spoken in that video were to be only listened to by the Father and Y. I pause here to comment that the better argument might be that the conversations recorded were not private because the Father's yelling, clearly heard in the videos recorded in the house, was behaviour that might reasonably be expected to be overheard by someone else.
Second, that the Father impliedly consented to at least some of the recordings because he said in his affidavit of 27 June, that ‘[Y] often filmed me [him] in the middle of arguments.’[5] Also, at paragraph 34 of the same affidavit, he noted that in relation to the video where he was imitating her crying, that she ‘would often film herself crying.’ As such, it was argued the Father was aware that his behaviour was likely to be recorded and, so far as the videos involving Y, he has impliedly consented to them being taken thus meeting the exception set out at section 7(3)(a):
All of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used.
[5] Affidavit of Mr Almeras filed 27 June 2024 [26].
Third, even if they were private conversations, recorded without consent, Ms An argued it was reasonably necessary for Y and X to make the recordings for the protection of their lawful interests — the exception at sub-section 7(3)(b)(i).
Ms An referred to the decision in Janssen & Janssen [2016] FamCA 345 where the Court considered the question as to whether the recordings were reasonably necessary to protect the principal party's lawful interests. The Court stated:
The primary question is whether her action was reasonably necessary to protect her lawful interests. In that respect, in the case of Corby & Corby [2015] FCCA 1099, Judge Sexton applied the decision of the Court of Criminal Appeal in DW & R [2014] NSWCCA 28 to find on the facts before her:
that the Mother had the right to protect her interests not to be intimidated or harassed, and not be forced to respond to the Father's demands for sexual activity...
Accordingly, her Honour found that the exception to the prohibition set out in section 7(3)(b)(i) was satisfied and that the Mother's actions were reasonably necessary to protect her lawful interests. In arriving at that conclusion, a relevant factor stated by her Honour was to be that:
The Father may have had a public face very different from his private face, a possibility accepted by Dr Q, who agreed that the Father may be charming and delightful in company and intimidating and frightening in the home, as alleged by the Mother".[6]
[6] Janssen & Janssen [2016] FamCA 345 [6]-[7].
Ms An submitted that it is important and in the public interest for those impacted by family violence to be able to record such evidence to convince others that they need protection. This is particularly so in cases such as this where the alleged perpetrator denies any wrongdoing and, as in this case, seeks to blame the victim for their behaviour. Y said that the videos were recorded because her Father's violence was frequent and distressing. This was sufficient evidence to establish that Y, and indeed X, had lawful interests needing protecting.
Finally, if the Court was satisfied that the recordings were not made legally, they should still be admitted pursuant to section 138 of the Evidence Act — this being a case where, considering the factors set out in section 138(3), the desirability in admitting the evidence outweighs the contrary. It is to be remembered, Ms An submitted, that the videos would have no use but for the Father's poor behaviour. To claim that he is prejudiced because his own actions have been revealed is an argument that cannot stand.
Consideration
As stated, the videos on their face depict two children being exposed to family violence from the Father. The Mother says all seven videos are relevant to the proceedings as they informed her as to the risks she perceived existed in the Father's home — such that she had a reasonable excuse for breaching the orders on 1 March 24, 15 March 24 and 29 March 24 after she received the videos in or about February 2024. In my view, in terms of being admissible evidence, they are clearly relevant.
The question is, however, whether they have been illegally obtained and, if so, whether, in my discretion, I should allow them to be tendered in evidence.
Section 7 of the Surveillance Devices Act prohibits a person to record a private conversation to which a person is a party. The first five videos are seemingly taken by Y when she and the Father are in a room. In the first video, X is present. Given the Father's yelling of profanities in each of the videos, I question whether any of them could be considered as private — that is, they include conversations made in circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else. The sixth video, however, occurred in a car where seemingly only Y and the Father were present, and it is less likely that conversations could be overheard. The seventh video, taken by X, could not be reasonably overheard by others.
In my view, there is merit in the argument that the first five videos did not capture private conversations and are therefore not improperly obtained.
I also find merit in Ms An's argument that the Father impliedly consented to the videos taken by Y. The Father states in his affidavit that Y was always on her phone filming herself and him and things around her:
24. On a number of occasions I observed [Y] filming me with her mobile phone. I bought [Y] this mobile phone when she came to live with me. I became aware of this after [C] told me about a video he saw of me on [social media] that [Y] had posted.
25. [Y] was on her phone a lot. She was always taking photos of herself, recording videos, talking with her friends. [Y] took photos of her food, of herself, of clothes, of everything. She recorded everything on her phone.[7]
[7] Father’s Affidavit (n 5) [24]-[25].
In relation to the first video, the Father says he had seen Y filming herself like that before and crying:
32. The video described as A1 starts with [Y] crying filming herself. [X] was not present. [Y] had interrupted a conversation between my partner and me at the time. [Y] had said to my partner words to the effect, "I don't know why you are with him. I would leave him." This was disrespectful and inappropriate for [Y] to say. [Y] would often make comments like this to my partner at the time. I asked [Y] "What do you want to do about this." [Y] told me she didn't want to speak to me and leave her alone. I said to [Y] "What about I don't. What are you going to do?" [Y] starts crying and says . "Why do you like dramas?" I could see [Y] filming herself and becoming dramatic and crying more.[8]
[8] Ibid [32].
In relation to the second video where the Father imitated Y's crying, he says she often films herself crying:
34. The video described as A2 starts with me imitating [Y]. [X] was not present. [Y] would often film herself crying and then once the video stopped go about her life as normal and unaffected. In this video I am imitating [Y] crying as I believed she was pretending to be upset. I did not think anything of this as it was usual behaviour for [Y].[9]
[9] Ibid [34].
There is a strong argument that the Father's evidence confirms that he was aware that Y regularly videoed him, including during times of apparent conflict. With that knowledge, he still spoke to her in the way captured in the videos. It is a reasonable inference that he was aware that she may have been recording his behaviour. There is a strong argument that he impliedly consented to the videos taken by Y.
Whether or not the videos captured private conversations and/or were made with his implied consent, in my view the videos were not obtained illegally because the recording of the conversation was reasonably necessary for the protection of the both Y and X’s lawful interests, and therefore satisfying sub-section 7(3)(b)(i).
The first question is therefore whether or not Y and/or X have a lawful interest that needs protecting.
What constitutes a lawful interest was considered by Judge Scarlett in Corby & Corby — where it was stated, after considering a number of decisions:
I am satisfied on the basis of the authority of DW & R and the authorities referred to by the Court of Criminal Appeal, that the Mother had the right to protect her interests not to be intimidated or harassed, and not to be forced to respond to the Father's demands for sexual activity, and that section 7(3)(b)(i) is therefore satisfied in relation to the term "lawful interests".[10] (emphasis added)
[10] Corby & Corby [2015] FCCA 1099 [23].
In this case, Y did not set up nor contrive the videoed moments — they are recordings of the Father unprompted and in action. They are likely examples of family violence. I am satisfied that Y had a lawful interest in not being exposed to her Father's abuse — for the purpose of the first six videos. I am also satisfied that X had a lawful interest in not being exposed to her Father's denigration of her Mother.
The next question is whether the videos were reasonably necessary for the protection of Y and X's lawful interests. In DW & R, the New South Wales Court of Criminal Appeal cited with approval the observations of Johnson J in Sepulveda v The Queen [2006] NSWCCA 379 at 139:
Reasonable necessity is to be judged objectively upon basis or grounds that exist at the time of the recording.[11]
[11] DW & R [2014] NSWCCA 28 [43].
Aldridge J in Yagin & Harstad [2024] FedCFamC1F 202 considered some of the authorities dealing with the meaning of the term "reasonably necessary":
In Rathswohl v Court [2020] NSWSC 1490, Rees J helpfully collected a number of authorities on this issue (at [9]-[34]). At [35] her Honour said:
The following considerations may indicate whether recording a private conversation without consent may be reasonably necessary for the protection of lawful interests of the person making the recording:
(a) whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose, the contentious subject matter of the conversation or the characteristics of the person being recorded may indicate that it was necessary to make the recording in order to secure the admission; recording a conversation for the purpose of extracting money, inducing further improper conduct or to blackmail the party will indicate to the contrary,
(b) whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation; this is more likely to be the case where the conversation concerns a serious criminal matter or the principle party has a genuine concern for their safety or that of their children,
(c) whether there are other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note,
(d) whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral recording and thus one person's word against another; recordings of conversations just in case there is a dispute or for the sake of making an accurate record of what was said is not enough.[12]
[12] Yagin & Harstad [2024] FedCFamC1F 202 [52].
Aldridge J continues, citing Nanosecond Corporation Proprietary Limited v Glen Carron Proprietary Limited [2018] SASC 116 where Doyle J said:
In summary, while a threat to a person's physical safety or the desire to uncover a crime or resist an allegation of crime will often give rise to a lawful interest that would warrant protection through the use of a listening device, not every commercial or legal interest or dispute in relation to such an interest will suffice to establish a lawful interest for the purpose of the legislation.[13]
[13] Ibid [53].
In Corby & Corby, Judge Scarlett found that it was reasonably necessary in that case for the wife to protect her interests by videoing her husband:
I am satisfied that the observations of the Court of Criminal Appeal in DW & R in relation to the term "reasonably necessary" apply in the present case. In DW & R, as here, the Mother alleges that the recordings were made at the time the alleged behaviours were actually occurring. The Mother was living with the Father in the same home. She was frightened of him. She told her counsellor she was frequently teary, unable to sleep, was worried about money if she left the marriage, and was fearful of her son being left overnight in the Father's care. She reported being fearful of the repercussions of reporting the Father to police. She held onto the tapes and did not disclose them to authorities. I find no reason to infer that the recording was not made for the purpose of the complainant having some evidence which she could use to convince others to believe her or to corroborate her word or to protect herself or ex from further such behaviour. While the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted. If this was so, as the Court found in R & Coutts, it may not have been a realistic option for her to report her predicament to the police and obtain a warrant for conversations with her husband to be recorded.[14] (emphasis added).
[14] Corby & Corby (n 10) [29].
Conclusion
In this case, we have two children recording the Father in moments of him behaving poorly towards them. They were vulnerable and subject to the control of a parent. There was little ability for them to prove the nature of abuse they were subject to without recording the same. It was the most realistic way for them to prove what they were experiencing. The children did not set the Father up, nor, on the face of the videos, provoke him for the purpose of concocting evidence. Y's emotional response in most of the videos was one of distress. The videos, taken in the moment of the Father unleashing his angry or derogatory outbursts, were a reasonable means of capturing their experiences. I am satisfied that the first six videos were reasonably necessary for the protection of Y's lawful interests. The last recording by X was also reasonably necessary for the protection of her lawful interests.
If I am wrong as to whether all of the recordings were illegal, I would still admit them into evidence pursuant to s138 of the Evidence Act.
The recordings are highly relevant to the last three of the four alleged contraventions that go to the question as to the reasonableness of the Mother's belief that X was at risk in the Father's care if she complied with the Order. They are, on their face, probative and important, particularly as these are contravention proceedings of a quasi-criminal nature, where the Mother is likely to face a penalty if the contraventions are proved.
The taking of the videos was not, on the evidence as it currently stands, contrived. The Mother did not appear to instruct the children to record the Father. In fact, Y's recording of the Father appeared, on his evidence, to be something that she regularly did, whether or not he was behaving in the manner that was ultimately captured. On the evidence as it currently stands, the recordings were made by the children spontaneously and sent without prompting to the Mother.
Given the above, and considering the matters set out in sub-section 138(3), in my view, this is a clear case where the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The seven videos will be admitted into evidence.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 16 August 2024
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