FEDERAL CIRCUIT COURT OF AUSTRALIA
| COULTER & COULTER (No.2) | [2019] FCCA 1290 |
| Catchwords: FAMILY LAW – Parenting – trial – application to exclude evidence – video recordings and audio recordings of conversations secretly made by mother – where mother a party to video recorded conversations but not a party to audio recorded conversations – private conversations – whether either type of recording improper – whether either type of recording was evidence obtained in contravention of Australian law – discretion to admit evidence improperly or illegal obtained – right of child to meaningful relationship with a parent – importance of privacy to a meaningful relationship. |
| Legislation: Evidence Act 1995 (Cth), ss.135 and 138 Family Law Act 1975 (Cth) Listening and Surveillance Devices Act 1972 (SA), ss.3, 4, 7 and 7(b) Surveillance Devices Act 2016 (SA), ss.5 and 12 |
| Cases cited: R v Bormann (2010) 244 FLR 105 Thomas & Anor v Nash [2010] SASC 153 |
| Applicant: | MS COULTER |
| Respondent: | MR COULTER |
| File Number: | ADC 248 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 16 April 2019 |
| Date of Last Submission: | 16 April 2019 |
| Delivered at: | Adelaide |
| Orders Pronounced on: | 16 April 2019 |
| Reasons Delivered on: | 15 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms H Tinning |
| Solicitors for the Applicant: | The Family Law Project |
| Counsel for the Respondent: | Mrs R Read |
| Solicitors for the Respondent: | Comley Legal |
| Counsel for the Independent Children's Lawyer: | Mr Praolini |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission |
ORDERS
The application by the father to exclude the video evidence sought to be tendered by the mother is dismissed.
On the application of the father, the audio evidence sought to be tendered by the mother is excluded.
IT IS NOTED that publication of this judgment under the pseudonym Coulter & Coulter (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 248 of 2017
| MS COULTER |
Applicant
And
| MR COULTER |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 April 2019, the respondent father made an application seeking to exclude certain evidence the applicant mother proposed to introduce at trial. The evidence in question was two video recordings of interactions between the father and the mother at the time of separate handovers on 8 and 10 June 2015, and two audio recordings of conversations between the father and various of the children. Both the video and audio recordings were made by the mother without the knowledge of the father.
The handovers occurred at the house of the mother. Prior to opening the door, she positioned a video recording device in the hallway of her home. It recorded vision of the mother at the door, the conversations that ensued between the parties, and the comings and goings, and things said by the children of the relationship. The father can be heard in those video clips but with some exceptions generally cannot be clearly seen.
The audio recordings were made on 5 November…
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- AGLC
- COULTER & COULTER (No.2) [2019] FCCA 1290
- Case
- [2019] FCCA 1290
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the video and audio recordings were improperly obtained, whether they constituted evidence obtained in contravention of Australian law, and whether the court should exercise its discretion to admit such evidence, notwithstanding any impropriety or illegality. The court also had regard to the child's right to a meaningful relationship with each parent and the importance of privacy in fostering such relationships.
His Honour determined that the video recordings, to which the mother was a party, were not improperly obtained or obtained in contravention of Australian law, and therefore dismissed the father's application to exclude them. However, the audio recordings, to which the mother was not a party, were found to have been improperly obtained and in contravention of Australian law. Consequently, the court exercised its discretion to exclude this audio evidence.
Orders
Orders of the court
1.
The application by the father to exclude the video evidence sought to be tendered by the mother is dismissed.
2.
On the application of the father, the audio evidence sought to be tendered by the mother is excluded.
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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