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 an assertion that a telephone conversation recorded between two parties was illegally obtained evidence. The ruling does not relate to the admissibility of the evidence in relation to matters yet to be argued.
Mr Chen lived in a de facto relationship with Ms Quen for a number of years after 1998 or 1999. Together, they disagree when their relationship ended but during the year 2015, they entered into a number of agreements culminating in what has been described as a binding financial agreement. During all of those years, Mr Chen (“the husband”) was married to, and living with, Ms Chen (“the wife”).
From each of the two relationships, there are children.
The substantive and discrete applications of both the husband and the wife seek that the financial agreement be set aside.
On 10 August 2016, Ms Quen spoke to the husband on the telephone for 46 minutes. She recorded the conversation. As I have indicated, both the husband and the wife object to its admission into evidence. It is not contentious that the husband did not know of the recording for over a year.
The first issue to determine is whether the recording of that conversation was illegal.
A number of authorities were relied upon but I consider that whilst they are all helpful, this issue can be determined by reference to the statutes involved. Helpfully however, some reference can be made to those authorities.
In Janssen and Janssen [2016] FamCA 345 McLelland J considered the admissibility of transcripts of audio recordings made by one party without the consent of the other. The issue was whether or not the recording fell within the exception in the relevant New South Wales legislation. His Honour noted that it was common ground between the parties that s 7 of the Surveillance Devices Act 2007 (NSW) makes it unlawful to record private conversations without the consent of the parties to that conversation unless the recording fell within one of the exceptions. His Honour held that an exception applied because the actions were reasonably necessary to protect the lawful interests of the party recording the conversation. The lawful interests in that case were said to be that there was family violence behind closed doors and it was very difficult to otherwise prove allegations that were denied. His Honour was satisfied that that was an appropriate example of someone protecting their lawful interest.
In Alexander and Turner [2015] FCCA 3197 Judge Harland dealt with a contravention of a parenting order in which a recording was made by a teenage child of a conversation between her father and her step-mother. A court order had provided that the children be able to telephone their mother and the child had complained that she had been prevented by her father from so doing. On the contravention application, the father objected to the· conversation being admitted on the basis of s 6 of the Surveillance Devices Act 1999 (Vic). The mother relied upon the exception in that Act set out in s 11 relating to a public interest issue. The father argued that the recording should not be admitted because to do so, would condone a child gathering evidence but also that it was “condoning illegal conduct”. Thus, there was an assumption that the recording was illegal.
In addition, Judge Harland noted at [54] that the reference in s 11(2) of the said Act is to a communication or publication in the course of legal proceedings or disciplinary proceedings. Her Honour concluded that that particular exception was referring to something taking place during the course of legal proceedings and that was not the case there because the contravention application was filed on 20 April 2015 and the conversation was recorded on 28 December 2014. I am not convinced that the provision is restricted to only mean after proceedings have been commenced but in any event, I do not have to decide that issue now.
The main thrust of the objection by counsel for the husband in the present case was that the recording of the conversation breached the Telecommunications (Interception and Access) Act 1979 (Cth). Section 7 of the Telecommunications (Interception and Access) Act provides that a person shall not intercept a communication passing over a telecommunications system. Section 5F provides that a communication is taken to start passing over a system when it is sent or transmitted by the person sending it and is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.
In Chao v Chao [2008] NSW SC 584, Brereton J extempore, held that the recording of a conversation over a telephone which occurred by means of a portable cassette-type recorder not part of the telephone was not illegal. In the case before me, I do not know how the recording occurred but have presumed that it was some similar such device.
Brereton J held that at the time the recording was made, the communication had become accessible to the intended recipient and therefore that the Commonwealth Act did not apply. For the same reasons adopted by Brereton J, I rule that the Commonwealth legislation here does not apply. The conversation was recorded as each of the participants spoke to each other and the communication became accessible immediately. The husband accessed it as the intended recipient. There was no prospect of an interception for recording purposes on the assumption that intercept has its plain meaning of coming between, blocking or cutting off. In my view the provisions of s 5 do not apply.
Counsel for the husband submitted that in the alternative, the recording of the conversation was caught by s 11(1) of the Surveillance Devices Act 1999 (Vic). That provision says that a person must not knowingly communicate or publish a record of a private conversation that is made as a direct or indirect result of the use of a listening device.
Sub-section 2 of the same provision says that sub-section I does not apply to a communication or publication that is no more than is reasonably necessary for the protection of the lawful interests of the person making it or to a communication or publication in the course of legal proceedings.
In respect of the protection of the lawful interests of Ms Quen, her counsel submitted that the evidence established that it was only undertaken to protect her lawful interests. The lawful interests here are said to be the protection of the benefits that she had received under the agreement in circumstances where the husband asserts that he did not receive independent legal advice regarding the advantages and disadvantages of the execution of the agreement; that Ms Quen failed to disclose assets and understated the value of assets that she owned or controlled; and that he signed the agreement under duress.
It is said that the conversation on the tape, albeit in U Language, reflects the husband’s position such that it would be inconsistent with the three assertions that I have just mentioned. For his part, the husband says that the court will have considerable difficulty dealing with the issue of what the conversation meant, apart from it being in U Language, because he will say that at times he was being sarcastic.
In my view, the test is objective and has to be determined on the balance of probabilities. At that time, Ms Quen knew that the husband was disputing her rights to retain property that he had transferred to her. She apparently wanted to establish that he had motives such as that he was angry about being "sidelined" as a result of the financial settlement. All of those matters can be tested in cross-examination as can the issue of the meaning of words used by the parties albeit translated from U Language. In addition, I am still to determine after argument, the issue of whether the evidence should be excluded in any event. However, the immediate purpose is to determine whether the conversation was recorded illegally and that can only be determined on the basis of the objective analysis of the argument put by Ms Quen for its admission. I am satisfied that she had a purpose in so doing to protect her lawful interest.
In addition, the exceptions include that it is not illegal to record such a communication if it falls within sub-section (2)(c) to a communication or publication in the course of legal proceedings. These proceedings were apparently on foot at the time the conversation occurred and as such, fall within that definition. It must therefore follow that the conversations were not unlawfully undertaken.
That does not mean that an application cannot be made to exclude the evidence on the basis of s 138 of the Evidence Act 1995 (Cth).
I rule that the conversations were not illegally recorded.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 November 2017.

Associate:

Date: 8 August 2017