Gawley & Bass - [2016] FCCA 1955

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAWLEY & BASS

[2016] FCCA 1955

Catchwords:
FAMILY LAW – Evidence – father seeks to tender affidavit and annexed transcripts of recordings secretly taken in mother’s home – section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) and sections 138 & 135 of the Evidence Act 1995 (Cth) discussed – affidavit admitted – accuracy of one transcript to be proved – balance of transcripts excluded.

Legislation:
Evidence Act 1995 (Cth), ss.128, 135, 138
Surveillance Devices Act 2007 (NSW), ss.4, 7
Listening Devices Act 1984 (NSW)

Cases cited:

Latham & Latham [2008] FamCA 877

Sepulveda v R [2006] NSWCCA 379
Huffman & Gorman [2014] FamCA 150
Huffman & Gorman (No 2) [2014] FamCA 1077

Applicant:

MS GAWLEY

Respondent:

MR BASS

File Number:

PAC 4954 of 2015

Judgment of:

Judge Baker

Hearing date:

19 May 2016

Date of Last Submission:

13 July 2016

Delivered at:

Hobart

Delivered on:

1 August 2016

REPRESENTATION

Counsel for the Applicant:

Ms Gillies of Counsel

Solicitors for the Applicant:

Matthews Folbigg Pty Ltd

Counsel for the Respondent:

Mr Richards of Counsel

Solicitors for the Respondent:	Selvaggio Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Renshall of Counsel

Solicitors for the Independent Children’s Lawyer:

Kathryn Renshall

ORDERS:

Leave is granted for the mother to rely on the affidavit of Ms R sworn 16 June 2016.
Paragraphs 2 and 3(t) and (u) of the father’s affidavit sworn 18 May 2016 are struck out.
Annexure A to the father’s affidavit sworn 18 May 2016, save for the 9 August 2015 transcript, is struck out.
The transcript of 9 August 2015 is marked MF1.
The balance of the father’s affidavit sworn 18 May 2016 is admitted and marked F1.
The mother has leave to make, file and serve an affidavit in answer to the father’s affidavit sworn 18 May 2016 by 4.00pm on 18August 2016.
Any objections to affidavit evidence are to be made, filed and served by 4.00pm on 23 August 2016.
The father make, file serve an amended response and financial statement within 21 days.

IT IS NOTED that publication of this judgment under the pseudonym Gawley & Bass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

PAC 4954 of 2015

MS GAWLEY

Applicant

And

MR BASS

Respondent

REASONS FOR JUDGMENT

The pending proceedings concern interim parenting arrangements for the four children of the parties W, aged 17 years, X and Y, twins aged 12 ½ years and Z aged 18 months.
These reasons for judgment pertain to a dispute about the admissibility of the father’s affidavit sworn 18 May 2016, having regard to s.7(1) of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Act”).
At the commencement of a hearing for interim parenting orders, the father sought leave to tender his affidavit which contains evidence about the installation by him of a listening device in the mother’s home between 24 July 2015 and 10 August 2015. The father transcribed and annexed…

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 Gawley & Bass

Details

AGLC: Gawley and Bass [2016] FCCA 1955
Case: [2016] FCCA 1955
Decision Date: 1 August 2016

CaseChat Overview and Summary

This matter came before Judge Baker concerning an application by the father to admit certain recordings as evidence. The father conceded that the balance of the recordings contravened section 7(1) of the Surveillance Act. He argued that even if a specific conversation from 9 August 2015 was found to be illegally obtained, it, along with other evidence, should be admitted pursuant to section 138 of the Evidence Act. The mother sought to rely on her own affidavit and sought to strike out parts of the father's affidavit and an annexure thereto.

The primary legal issue before the court was whether to exercise its discretion under section 138 of the Evidence Act to admit evidence obtained in contravention of an Australian law. This required the court to weigh the desirability of admitting the evidence against the undesirability of admitting improperly obtained evidence, considering various factors including the probative value, importance, nature of the proceedings, gravity of the contravention, and whether it was deliberate or reckless. The father also sought to rely on the precedent set in *Latham & Latham*, where similar recordings were admitted.

Judge Baker reasoned that the father's submissions regarding the probative value of the recordings were significant. The recordings were presented as evidence of the mother's alleged inability to control her anger, her use of inappropriate language towards the children, and her negative attitude towards the father. The father contended that this evidence was particularly important given the circumstances of the case, including demonstrating the children's desire to spend time with him. The court considered the factors outlined in section 138(3) of the Evidence Act, including the potential high probative value and importance of the evidence, as noted in *Latham & Latham*.

The court made several orders regarding the admissibility of evidence. Leave was granted for the mother to rely on her affidavit. Paragraphs of the father's affidavit and an annexure were struck out, with the exception of a transcript from 9 August 2015, which was marked as MF1. The remaining parts of the father's affidavit were admitted as F1. The mother was granted leave to file an affidavit in answer, and objections to affidavit evidence were to be made by specific dates. The father was ordered to file an amended response and financial statement within 21 days.

Orders

Orders of the court

Leave is granted for the mother to rely on the affidavit of Ms R sworn 16 June 2016.

Paragraphs 2 and 3(t) and (u) of the father’s affidavit sworn 18 May 2016 are struck out.

Annexure A to the father’s affidavit sworn 18 May 2016, save for the 9 August 2015 transcript, is struck out.

The transcript of 9 August 2015 is marked MF1.

The balance of the father’s affidavit sworn 18 May 2016 is admitted and marked F1.

The mother has leave to make, file and serve an affidavit in answer to the father’s affidavit sworn 18 May 2016 by 4.00pm on 18August 2016.

Any objections to affidavit evidence are to be made, filed and served by 4.00pm on 23 August 2016.

The father make, file serve an amended response and financial statement within 21 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is conceded by the father that the balance of the recordings contravene s.7(1) of the Surveillance Act. He submits that even if the 9 August conversation is found to be illegal, together with the balance of the evidence, it should be admitted pursuant to s.138 of the Evidence Act. This reads as follows:Exclusion of improperly or illegally obtained evidence(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.(2) …(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. The father again relied on Latham & Latham,[13] noting that Le Poer Trench J exercised his discretion pursuant to s.138 to admit the relevant recordings.[13] [2008] FamCA 877. The father submits that the evidence is probative, as the recordings evidence the wife’s inability to control her anger, including screaming at the children, using inappropriate terms towards them, hitting and clapping near Z, denigrating criticism of the husband and complaints from W as to how her mother treats her and the twins. The father submits that the evidence is highly probative, particularly in the circumstances of this case. He also submits that the 10 August 2015 recordings demonstrate that the mother not only saw it as appropriate that the twins could stay overnight with him but also that they had communicated their wishes to do so to her. It is submitted that the evidence is also probative to the issue of the mother’s attitude towards the father and her veracity in refusing his time with the children until the interim orders were made in December 2015 In Latham & Latham,[14] Le Poer Trench J found that the probative value of the evidence was “potentially high” and the evidence was “potentially important”.[15] His Honour referred to affidavit evidence of the father in an earlier judgment in the same matter. His Honour wrote in that judgment that evidence of statements made by the mother, if correctly reported, would paint the mother as “a seriously bad child abuser”.[16] The recording sought to be tendered in that matter included some of the behaviour of the mother referred to by the father in his affidavit.[14] [2008] FamCA 877.[15] Ibid, at para 28.[16] Ibid, at para 5.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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