Chen & Chen and Ors (No 4) - [2017] FamCA 1187

FAMILY COURT OF AUSTRALIA

Chen & Chen and Ors (No 4)

[2017] FamCA 1187

RULING -- objection to evidence on the basis of a recorded telephone conversation.
Where the recording occurred when proceedings had commenced in addition to which
the recording party objectively satisfied the court that she was protecting her lawful
interests. Recording not illegal.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Surveillance Devices Act 1999 (Vic)
Surveillance Devices Act 2007 (NSW)
Telecommunications (Interception and Access) Act 1979 (Cth)

Alexander and Turner [2015] FCCA 3197
Chao v Chao [2008] NSW SC 584
Janssen and Janssen [2016] FamCA 345

APPLICANT:

MS CHEN

1^ST RESPONDENT:

MR CHEN

2^ND, 4^TH, 5^TH, 6^TH AND 7^TH RESPONDENTS

MS QUEN; QUEN PTY LTD;

E PTY LTD;COMPANY F;

AND G PTY LTD

3^RD, 8^TH, 9^TH AND 10^TH RESPONDENTS:

C PTY LTD;

MR A CHEN;

MR B CHEN;

MR C CHEN

FILE NUMBER:

MLC

5805

2016

DATE DELIVERED:

8 NOVEMBER 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE

JUSTICE CRONIN

HEARING DATE:

1 , 2 , 3 NOVEMBER 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR DICKSON QC WITH
DRDINELLI

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE FILDES

COUNSEL FOR THE 1^STRESPONDENT:

MR WILSON

SOLICiTOR FOR THE RESPONDENT:

BOWLEN DUNSTAN & ASSOCIATES

COUNSEL FOR THE 2^ND, 4^TH, 5^TH, 6^th AND 7^TH RESPONDENTS:

MR STRUM QC WITH DR INGLEBY

SOLICiTOR FOR THE RESPONDENT:

BOWLEN DUNSTAN & ASSOCIATES

COUNSEL FOR THE 3^RD, 8^TH, 9^TH AND 10^TH RESPONDENTS:

MR PUCKEY

SOLICITOR FOR 3^RD, 8^TH, 9^TH AND 10^TH RESPONDENTS:

MARSHALLS & DENT LAWYERS

Orders

That the objection to the evidence of recorded conversations being admitted into evidence on the basis of their illegality is dismissed.

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 Chen & Chen and Ors (No 4) 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 Melbourne

FILE NUMBER: MLC 5805 of 2016

MS CHEN
Applicant

And

MR CHEN
1^ST Respondent

And

MS QUEN; QUEN PTY LTD; E PTY LTD; & QUEN PTY LTD AND G PTY LTD
2nd, 4th, 5th, 6th and 7th Respondents
And

C PTY LTD; MR A CHEN; MR B CHEN; MR C CHEN
3^rd, 8^th, 9^th and 10^th Respondents

RULING

This ruling relates to an objection to evidence arising from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chen & Chen and Ors (No 4)

Details

AGLC: Chen & Chen and Ors (No 4) [2017] FamCA 1187
Case: [2017] FamCA 1187
Decision Date: 8 NOVEMBER 2017

CaseChat Overview and Summary

In *Chen & Chen and Ors (No 4)*, Justice Cronin of the Supreme Court of New South Wales considered an objection to the admissibility of recorded telephone conversations. The objection was raised by the parties against whom the recordings were sought to be admitted, on the ground that the recordings were illegal.

The central legal issue before the Court was whether the recorded telephone conversations were illegally obtained, thereby rendering them inadmissible as evidence. This required the Court to determine if the recording party's actions were lawful, particularly in light of the commencement of proceedings and the motivation behind making the recordings.

Justice Cronin dismissed the objection, finding that the recording party had objectively satisfied the Court that she was protecting her lawful interests. The Court reasoned that the recording was not illegal in these circumstances, implying that the protection of one's lawful interests, especially after proceedings have commenced, can justify the recording of telephone conversations. Consequently, the Court found no basis to exclude the evidence on the grounds of illegality.

The Court ordered that the objection to the evidence of the recorded conversations be dismissed.

Orders

Orders of the court

That the objection to the evidence of recorded conversations being admitted into evidence on the basis of their illegality is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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