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

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…

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 COULTER & COULTER (No.2)

Details

AGLC: COULTER & COULTER (No.2) [2019] FCCA 1290
Case: [2019] FCCA 1290
Decision Date: 15 May 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Heffernan considered an application by the father to exclude certain video and audio recordings of conversations made by the mother. The dispute concerned the admissibility of this evidence in parenting proceedings.

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

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.

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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