COULTER & COULTER (No.2)

[2019] FCCA 1290

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
Groom v Police [2015] SASC 101

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

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.

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

1. 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.

2. 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.

3. The audio recordings were made on 5 November 2015 and 19 January 2016.  By a means not explained in the affidavit of the mother, she managed to make audio recordings of private conversations between the father and the children.  The only explanation for the provenance of these audio recordings is the assertion in her trial affidavit that the father had installed the KIK Messenger application on the iPods of two of the children.[1]  There is no explanation as to how the mother recorded the conversations; why she recorded these particular conversations; if they are conversations using the KIK Messenger application or telephone conversations; or how the transcripts came to be produced.  The conversations sound like telephone conversations.  In any event, they were undoubtedly private conversations.  I will refer to them as the audio recordings.

   [1] Trial affidavit of mother dated 7 March 2019 at para [202].

The Application

1. Applications to exclude evidence on the basis identified above are dealt with by ss.135 and 138 of the Evidence Act 1995 (Cth) (‘the Evidence Act’).

2. Section 135 deals with the general discretion to exclude evidence as follows:

   “The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

   (a)     be unfairly prejudicial to a party; or

   (b)     be misleading or confusing; or

   (c) cause or result in undue waste of time.”

3. Section 138 deals with the discretion to exclude improperly or illegally obtained evidence and provides as follows:

   “(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.

   …

   (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.”

4. I will deal firstly with the application pursuant to s.138. In particular, I will deal firstly with the question of impropriety and then address the question of whether either type of recording was made contrary to Australian law.[2]

   [2] It is not necessary on the facts of this matter to consider s.138(1)(b).

Were any of the recordings made improperly?

1. The term ‘improperly’ is not defined in the Evidence Act. Section 138 applies to both criminal and civil proceedings. Whilst there is no reason to conclude that the term ‘improperly’ should be narrowly construed, it seems clear that it will at least to some extent take its meaning from its context. The standards of propriety expected of police officers when obtaining evidence will not necessarily be the same as those expected of an ordinary member of the public, or indeed even a government official in a non-investigative role.[3]  It is difficult to determine whether conduct is improper in the context of a dysfunctional co-parenting relationship between formerly married persons with four children.  By what standard of conduct is impropriety to be assessed?

   [3]     R v Bormann (2010) 244 FLR 105.

2. In my view, relevant considerations in assessing the conduct of the mother include: the allegations by her of physical violence and coercive and controlling behaviour by the father; the fact that the child, C, left her care to live with the father and has had no contact with the mother since he was 15 years of age; the fact that the father was unaware of either the video or audio recordings being made; and the fact that the mother was not a party to the conversations in the audio recordings, and that they were private conversations between the father and the children in the context of him having less time with them.

3. I am satisfied that it was not improper for the mother to make the video recordings of the two hand overs.  That is by virtue of the matters I have identified above and the history of the relationship between the parties.  Handovers occur in circumstances where the mother has a legitimate interest in her personal safety, welfare and in preventing the children from being exposed to conflict and unpleasantness between the parties.  At the time that the mother made the video recording, it is her evidence that she had been having ongoing difficulties of that sort with the father.  The mother had an ongoing concern about the father’s apparent obsessiveness with matters personal to her and his abusive, coercive and controlling behaviours and past episodes of violence.  She was in the process of seeking an intervention order against him to deal with those issues.  The interim order was made on 23 June 2015 after the video recordings were made.  Recording his behaviour was not improper in that context, even allowing for the secrecy with which it was done.  In considering the question of impropriety, I also give weight to the conclusion I will explain later, that the conduct in recording the handover was not contrary to a relevant Australian law.

4. In my view, it was improper of the mother to make secret audio recordings of private conversations between the father and the children.  It involved a significant breach of trust with respect to the children, who were entitled to privacy in their conversations with their father irrespective of any motives he may have had to enlist them in his dispute with the mother.

Were any of the recordings made in contravention of an Australian law?

1. As far as either the audio or video recordings being made in contravention of an Australian law is concerned:

   a)I am satisfied that it was not a contravention of an Australian law for the mother to make the video recordings of the handovers. 

   b)I am of the view that it was in contravention of an Australian law for her to make the secret audio recordings of the private conversations.

2. The relevant Australian law for this application is the Listening and Surveillance Devices Act 1972 (SA), (‘the Listening and Surveillance Devices Act’) now repealed but which was operative at the time each of the recordings was made.

3. Section 3 of that Act defines ‘listening device’ in terms that include devices that can make both audio and audio and visual recordings. The mother’s trial affidavit is silent on the devices used for either of the type of recordings but it can be inferred that each of the recordings was made by a device or devices falling within the ambit of the definition.

4. Section 4 prohibits the recording of private conversations without consent in these terms:

   “4—Regulation of use of listening devices

   Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.

   Maximum penalty: $10 000 or imprisonment for 2 years.”

5. ‘Private conversation’ is defined in s.3 as follows:

   ““private conversation” means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation”

6. In Thomas & Anor v Nash[4] Doyle CJ observed:

   “A conversation can be private even though the participants are at liberty to tell others about it later. In the Act, “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. A telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it. On the other hand, a telephone conversation on talkback radio is not a private conversation.”[5]

   [4] [2010] SASC 153.

   [5] Ibid at para [37].

7. Section 4 does not apply in the following circumstances:

   “7—Lawful use of listening device by party to private conversation

   (1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used—

   (a)to overhear, record, monitor or listen to any private conversation to which that person is a party; and

   (b)in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.”

   (emphasis added)

8. As far as the video recordings of the handovers is concerned, they captured private conversations between the parties. They were without the consent of the father and unknown to him. Section 4 applies unless the circumstances fall within the exceptions in s.7. The relevant questions from subs.7(b) are whether it was in the public interest or for the protection of the lawful interests of the mother that the recordings be made. I am not satisfied that it was in the public interest for the mother to video the handovers. The question of whether a recording is “for the protection of the lawful interest of” a person has been the subject of judicial consideration.  Doyle CJ had this to say in Thomas & Anor v Nash:

   “44I find that Mr Nash did not record the conversations “for the protection of the lawful interests of” Mr Nash.

   45Mr Nash made the recordings in case it might later turn out that in some way he could use them to his advantage. There was no litigation in contemplation at the time. Even if there was, my conclusion would be the same.

   I do not consider that a person makes a recording to protect his lawful interests simply because he has a hope that in contemplated litigation the recording might be used to his advantage. This is not a case in which the recording was made to uncover a crime, or to resist an allegation of crime.

   46I have considered a number of decisions dealing with the relevant provisions of the Act, and with similar legislation elsewhere. …

   …

   47In none of those decisions is there an attempt to identify comprehensively the scope of the expression “lawful interests”. That is not surprising. It is an expression which is best left to be applied case by case, subject to some general guidelines.

   48Each decision is an application of the expression to its particular facts. In most of those decisions it was accepted that a mere desire to have a reliable record of a conversation is not enough. I agree. Most of the decisions proceed on the basis that a desire to gain an advantage in civil proceedings would not ordinarily amount to a relevant lawful interest, although of course each case has to be considered on its facts. Several of the cases proceed on the basis that where the conversation relates to a serious crime, or an allegation of a serious crime, or to resisting such an allegation, a court is more likely to find that the recording of a conversation relating to the crime can be made in the protection of the person’s “lawful interests”.

   49A number of the decisions make the point, with which I agree, that the exception in s 7(1)(b) should not be read so widely that it undermines the protection given by s 4, which protection is at the very heart of the Act.”

9. I have also considered Groom v Police[6] where Nicholson J dealt with a recording made by a person who was protected by an intervention order and who sought to prove a breach of that order. Being satisfied that the relevant conversation was both private and had been recorded in contravention of s.4, his Honour considered the exceptions in s.7 as follows:

   “40Irrespective of whether or not a serious crime is in contemplation, a court should more readily accept that the recording of a “private conversation” has been carried out in pursuit of a person’s lawful interest in circumstances where that person has a genuine concern for their own safety. Domestic violence is a very serious problem in our community. It would appear that, at least, the recognition and reporting of domestic abuse, be it physical, psychological, or by threatening behaviour, is on the rise. An intervention order is a very important first step in protecting a person, usually a woman, who has been the subject of domestic abuse. Such an order gains much of its value in this respect according to the extent that it can be enforced. Respondents must be discouraged from infringing any such court order.

   41An unrecognised (by the justice system) and unpunished breach of an intervention order further undermines the confidence of a protected person that the law can and will adequately protect them and increases the likelihood of further breaches.

   42 I stress that these are general remarks aimed at explaining why there will be occasions when the making of a recording, in order to prove a breach of an intervention order, will be in the pursuit of lawful interests and within the exception provided for by section 7.”

   [6] [2015] SASC 101.

10. By analogy, I am satisfied in the circumstances of the two video recordings that the mother was acting in protection of her lawful interests.  At the time that the videos were made, things were still very raw between herself and the father.  She genuinely believed herself to be a victim of family violence and was looking for a way to demonstrate that for the purpose of obtaining an intervention order.  The behaviour of the father during the video recordings was consistent with the mother’s concerns and the definition of ‘family violence’ under the Family Law Act 1975 (Cth) (‘the Family Law Act’). That finding should not be taken to be an imprimatur for the mother to secretly record any or all private conversations to which she is a party with the father, for the reasons identified by Doyle CJ. I have simply found that in the circumstances of the subject video recordings at the time of the handovers she was acting to protect her lawful interests.

11. I view the recording of the audio recordings of private conversations between the father and the children differently.  The conversations were private conversations between the father and the children.  They were secretly recorded.  The fact that the mother believed, with some justification, that the father was attempting to alienate at least one of the children from her and recruit him for his own tactical purposes, is not in my view sufficient to make them either recordings in the public interest, or for the protection of the mother’s lawful interests.  The mother was not acting to protect herself, or to record conversation or behaviour relevant to the proof of a criminal offence, or the likelihood of an offence being committed.  The conduct falls into the category identified by Doyle CJ, namely of trying to garner information that might be of use to her at a future time, possibly in proceedings such as these. 

12. In summary, I find that it was neither improper or in contravention of an Australian law for the mother to have made the video recordings of the handovers in the circumstances that she did. I am satisfied that it was both improper and a contravention of the Listening and Surveillance Devices Act for her to make audio recordings of the private conversations.

The discretion to admit the audio recordings of the private conversations

1. I turn to the question of whether the audio recordings should be admitted pursuant to s.138 of the Evidence Act because the desirability of so doing outweighs the undesirability of excluding them.

2. The evidence has clear probative value to the allegation arising on the mother’s case of parental alienation, engaging the children in adult disputes, and when considering the nature of the children’s relationship with both parents.  That is so notwithstanding the conversations that occurred in 2015 and 2016.  The evidence is of some importance on the mother’s case because alienation and tactical recruitment of children as allies in a parental dispute are difficult matters to prove.  Against that, as I have already remarked, the deliberate covert recording of private conversations between a father and a child is most improper.  The mother cannot have known in advance the matters to be discussed between the father and the children.  There is no evidence that she had particular reason to believe that the father was more likely to engage in attempts at alienation during these private conversations than in any others.  Her motives for making the recordings are unknown.  It is mere happenstance that the recordings she now seeks to tender demonstrate the father engaging in improper discussions with the child in question.  Her affidavit is silent on how many other recordings might have been made which contain material of no probative value.  It seems inherently implausible that these are the only two conversations she recorded.  Her conduct amounts to a serious invasion of the father’s privacy and the rights of the children.  The children have a right to a meaningful relationship with the father.  That obviously entails a right to communicate with the father including by way of private conversations.  The relationship between a parent and a child could be significantly compromised if a parent could not communicate freely with a child without fear of being covertly recorded.  That is particularly so in circumstances where, by reason of not being the primary carer, one parent relies on telephone communication with a child in order to maintain a meaningful relationship with them. 

1. In my view, these considerations are of greater weight than the probative value and the inherent difficulty in obtaining evidence of this sort.  They are of greater weight notwithstanding the fact that the recordings demonstrate the improper behaviour of the father in using at least one of the children to spy on the mother and recruit him for tactical purposes.

2. It is well known that parenting proceedings under the Family Law Act can and often do involve a high degree of stress, acrimony, and bitterness for the parties. Disputes and old grievances can become deeply entrenched, leading to the proceedings themselves becoming unnecessarily protracted. Such an outcome is never in the interests of the children, who face the risk of being lost in the at times selfish and internecine squabbling of the parents. The Court should be slow to give its imprimatur to any conduct by the parties that encourages such an outcome. We live in an age where our electronic devices present a myriad of opportunities to covertly make audio and video recordings and monitor electronically stored information. Electronically stored information can be covertly and illegally used by third parties. The ubiquity of smart phones means that every person potentially has a tracking device in their pocket. If in proceedings under the Family Law Act, the Court were to readily admit evidence otherwise improperly or illegally obtained, the temptation, and for many parties the tendency, would be to engage in widespread covert recording of private conversations which would contribute to a lack of trust between the parties, the unnecessary prolongation of disputes, and potentially erode the element of privacy necessary in any meaningful relationship between a parent and a child. Further, it is necessary that this Court recognise the operation of and public policy behind State law making it prima facie illegal to covertly record a private conversation. 

3. For these reasons, I am not satisfied that the desirability of admitting the evidence of the audio recordings outweighs the undesirability of doing so. 

4. With respect to the application to exclude the video of the handovers pursuant to s.135 of the Evidence Act, I dismiss it. I am not satisfied that the probative value of the evidence is substantially outweighed by any of the factors identified in that section or that those factors pertain to the videos.

5. By way of observation, I note that the current legislation relevant in the State of South Australia is the Surveillance Devices Act 2016 (SA) (‘the SD Act’).

6. It remains an offence to record by use of a listening device private conversations including those to which a person is a party.  It is illegal to use an optical surveillance device to record or observe the carrying on of a private activity without the express or implied consent of each party to the activity.[7]  The penalties for such offences if convicted are, for a natural person, a fine of up to $15,000 or 3 years imprisonment.  Further, it is an offence to knowingly use, communicate or publish information or material derived from the use of a surveillance device.[8] As with the Listening & Surveillance Devices Act, there are exceptions and defences under the SD Act. It should not be assumed by any party to proceeding under the Family Law Act that their actions in making covert recordings of private conversations would fall within one of the exceptions or defences. It is very possible that such conduct would involve the commission of an offence against State law.

   [7] SD Act, s.5.

   [8] SD Act, s.12. Note: a ‘surveillance device’ includes a listening device, optical surveillance device, tracking device or data surveillance device.

7. I accordingly make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 15 May 2019