Gawley & Bass
[2016] FCCA 1955
•1 August 2016
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 |
| 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 to his affidavit a summary of the recordings. Counsel for the father did not seek to tender the recordings at the interim hearing.
This application was made after the father, through his counsel, made an application pursuant to s.128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) for a certificate in relation to evidence to be given by him concerning the listening device and recordings used and made by him.
In the mother’s affidavit filed 16 May 2016, she gave evidence about the father placing the listening device in her home and as a result she obtained an Apprehended Violence Order (“AVO”) against him in September 2015.
The father attached to his affidavit filed 13 May 2016, the mother’s statement made to the police on 14 September 2015, in support of her application for an AVO. She included in her statement details about the recording device that the father left at the home. An interim order was made on the following day. The father in his May affidavit said that he agreed to a final order on 14 March 2016 on a “without admissions” basis. He did not give any further evidence about the issue of the listening device in that affidavit.
I granted the father a certificate. His counsel then sought leave to rely on the affidavit sworn 18 May 2016. The mother opposed this. She sought an adjournment of the interim hearing to obtain instructions about whether the father’s summary of the recordings annexed to the affidavit was accurate by listening to the recordings with her client. The adjournment was not opposed by the father. Counsel for the mother sought a costs order.
I made procedural orders including an order that within seven days the father’s solicitors provide to the mother’s solicitors and the Independent Children’s Lawyer (“ICL”) a copy of all recordings made by the father between 24 July 2015 and 10 August 2015.
It was agreed that written submissions be made in relation to the admissibility of the father’s affidavit and the costs application. The submissions made on behalf of the father were received on 1 June 2016. The submissions made on behalf of the mother were received on 15 June 2016. The mother sought to rely on an affidavit of her solicitor, Ms R, filed 16 June 2016. The submissions made on behalf of the ICL were received on 28 June 2016.
On 13 July, I listed the matter to ascertain whether the father’s solicitors objected to the affidavit of Ms R and to give the father an opportunity to respond to the affidavit. Correspondence between the parties’ respective solicitors about the recordings produced by the father is annexed to the affidavit.
The father’s solicitor objected to Ms R’s affidavit because leave had not been sought by her to rely on it. I asked the father’s solicitor, Ms Poletti, whether there was any correspondence missing or any other reason to object to the affidavit. The matter was stood down for Ms Poletti to obtain instructions. I was then informed by Ms Poletti that the father did not seek an opportunity to respond to the affidavit. I consider leave should be granted for the mother to rely on the affidavit. I consider that the correspondence is relevant to the determination of this application.
Background
Both parties are (nationality omitted). They married on (omitted) 1994. They moved to live in Australia in 1997. They separated on 17 June 2014 (according to the father) and in June 2015 (according to the mother). After separation, the children remained living with the mother in the former matrimonial home.
The mother commenced proceedings in October 2015. The first return date was 16 December 2015 when due to time constraints the interim hearing was adjourned to 19 May 2016.
On 16 December 2015, interim orders were made by consent. They provided that the father spend unsupervised time with the three younger children each Tuesday and Thursday from after school until 8:00 pm and each Saturday for three hours.
The mother made allegations of family violence by the father during their relationship, both physical violence and controlling and coercive behaviour. Whilst the father agrees that there was family violence during the relationship, he asserts that the mother had mood swings and was physically violent and verbally aggressive towards him and the children.
The application for leave to tender the father’s affidavit sworn 18 May 2016
The mother asserts that the evidence in the father’s affidavit has been illegally obtained. It is submitted that it is inadmissible as a consequence of the operation of s.7(1) of the Surveillance Act and ss.138 and 135 of the Evidence Act.
Section 7 of the Surveillance Act provides that it is unlawful to record private conversations without the consent of the parties to the conversation:
Prohibition on installation, use and maintenance of listening devices
(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) …
(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a)…
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii)...
(4) …
The father did not seek to tender the recordings. He sought only to tender his affidavit sworn 18 May 2016, with an attached summary of the transcript of the recordings.
Counsel for the parties and counsel for the ICL have all made submissions about the admissibility of the recordings.
The father’s counsel submits “it is assumed for the purpose of these submissions, that the transcript is an accurate representation of such recordings”.
The mother objects to the “admissibility of the recordings and any purported transcript in relation to them. Ultimately that then impacts upon the admissibility of the husband’s affidavit sworn and filed on 18 May 2016”. The accuracy of the transcript is disputed by the mother.
The ICL submits that “the recordings should be submitted into evidence”.
The father’s solicitors produced the recordings to the mother’s solicitors after the mother’s counsel sought an order for the service of the relevant audio recordings, to verify the transcript, being annexure A to the father’s affidavit. An order was made to that effect on 19 May 2016.
The recordings have not been transcribed by an independent transcription service. The transcripts contain commentary by the father. He does not indicate whether there was translation of them by him. As I have said, the mother disputes their accuracy.[1]
[1] See the mother’s written submissions filed 15 June 2016, at paras 22, 39, 40, 42, 43.
In paragraph 3(g)-(k) of the affidavit sworn 18 May 2016, the father says as follows: –
(g) On or about 23 July 2015, I put the device in the family lounge area downstairs on top of a high shelf. In this location, I thought that the listening device was not visible to Ms Gawley.
(h)Unfortunately, the listening device had a 10 metre limit of sensitivity to sound. It picked up sounds in the kitchen, TV/lounge area and dining area. Most of the other areas of the house were not covered.
(i) During this time I was visiting Z daily for one hour at Ms Gawley’s house and spending time with the twins at my house, from after school until 9 PM every second day. On every alternate visit, I would take the device home with me after visiting the children. On each occasion, I would upload the audio file recorded on the device onto my laptop and the erase the file on the device. I heard Ms Gawley often scream at the children. I then returned the device to its above mentioned location in the home the following day for further recording.
(j) I was concerned to protect our children from Ms Gawley’s violent temper and ill-treatment. I intended to go through all of the data and identify the most important parts before I told anyone about the audio files.
(k) I found the content which I did hear on the audio files disturbing. Annexed hereto and marked with the letter “A” is a transcript of some of the remaining original audio files I obtained from the listening device which I can make available to this Honourable Court if required.
Dispute about the recordings and transcript summary
Annexure “A” of the father’s affidavit comprises what purports to be a typed transcript of conversations between the mother and the children on 24 July 2015 (approx. 18.5 hours), 26 July 2015, 4 August 2015 and 10 August 2015 and one conversation between the father, mother, W and a priest on 9August 2015.
Correspondence between the parties’ respective solicitors about the recordings, produced pursuant to my order made 19 May 2016, is annexed to Ms R’s affidavit.
The father’s solicitor, in a letter to the mother’s solicitor dated 25 May 2016, enclosed a USB copy of the listening device recordings. The letter reads that the USB contains: –
1. Corrupted files from the original device;
2. Lengthy files from the original device; and
3. Files prepared by my client which are edited, shorter versions of the uncorrupted audio files relating to the relevant parts of his affidavit sworn 18 May 2016…
On 27 May 2016, the mother’s solicitors requested the meaning of “corrupted” in that letter. They also requested the excerpts that the father alleged to have transcribed in his affidavit given that he provided over 60 hours of recorded material. The request also includes the time stamp of the periods and the way in which the father believes the summaries are of the date and time alleged.
A letter dated 2 June 2016 from the father’s solicitors indicates that, “by corrupted, my client intends to convey that the sounds are no longer discernible”. It also indicates:
the original dates on the files are as set out in the left-hand column of the list attached and the date they were accessed are on the right-hand side of the page… all the material, as well as the excerpts that were transcribed have been provided… my client cannot timestamp the periods as he longer has them in his possession.
The mother’s solicitors wrote again on 2 June 2016, requesting confirmation that what has been provided on the USB is the entirety of what the father recorded.
The father’s solicitors answered that the father provided a copy of all recordings made by him between the periods 24 July 2015 to 10 August 2015… “my client no longer retains a copy of the recordings in his possession”.
The mother disputes its accuracy. The father has said that he “would upload the audio file recorded on the device onto my laptop and the erase the file on the device…“A” is a transcript of some of the remaining original audio files I obtained from the listening device”. His solicitors also indicate that annexure “A” is obtained from “Files prepared by my client which are edited, shorter versions of the uncorrupted audio files relating to the relevant parts of his affidavit sworn 18 May 2016…”
This is an interim parenting application heard on the papers. The authenticity of the transcript is disputed. The father asserts that the files relating to the relevant parts of his affidavit are uncorrupted. I cannot make a finding about the accuracy of the transcript.
Submissions about the 9 August 2015 transcript
Separate from the issue of the accuracy of the recordings and transcript, the father conceded that each of the relevant recorded conversations, save for the recording made on 9 August 2015, prima facie contravenes s.7(1) of the Surveillance Act, rendering them unlawful.
He contends that the recording made on 9 August 2015 was not illegally or improperly obtained pursuant to s.7(3)(b)(i) of the Surveillance Act. This section provides an exception to the prohibition contained in s.7(1) in circumstances where the recording is ‘reasonably necessary for the protection of the lawful interests of that principal party’ to the conversation.
The father submits that he was a ‘principal party’ to the recorded conversation on 9 August 2015. He states that his purpose in recording that conversation, as well as the others, was his concern about the mother’s treatment of the children in his absence after what W told him in July 2015 about the mother’s treatment of her.[2]
[2] Father’s affidavit sworn 18 May 2016, at para 3(a)-(b).
The father submits that in this context, the recording was reasonably necessary to protect both his lawful interests and those of the children.
On 15 September 2015, he made a report to Child Protection Services about the mother’s violent temper and mistreatment of the children. He asserts that the recordings made by him were an attempt to corroborate his assertions about the violence and parenting capacity of the mother should this ever be questioned by an authority.
Counsel for the father relies on the decision of Latham & Latham[3] in support of this submission, in which Le Poer Trench J considered the now repealed Listening Devices Act 1984 (NSW). The relevant provisions contained in the Surveillance Act are identical. The father submitted that in Latham & Latham, His Honour found in similar circumstances that the father “having parental responsibility for the children and an obligation to protect their interests and his own interests, those interests were by definition ‘lawful interests’ ”.[4]
[3] [2008] FamCA 877.
[4] Ibid at para 15.
The ICL also submits that the recordings should be accepted into evidence. In respect of the recording of the 9 August 2015 conversation, it is submitted by the ICL that the father has established that the exception provided for in s.7(3)(b)(i) is enlivened. It is submitted that:
it is well accepted that the recording of a conversation in the context of a dispute whereby facts are an issue between the participants of the conversation is a step ‘reasonably necessary for the protection of the lawful interests of that principal party’: see Latham and Latham [2008] FamCA 877 and Chao v Chao [2008] NSW SC 584.[5]
[5] Independent Children’s Lawyer’s written submissions filed 28 June 2016, at para 3.
The mother submits that the recording made on 9 August 2015 does not fall within the exception at s.7(3)(b)(i), as the father cannot establish that he was a ‘principal party’ to any conversation that is said by him to have been recorded on that date.
The term ‘principal party’ is defined in the Surveillance Act at s.4:
In relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation.
The mother submits that on the father’s evidence, the conversation said to be transcribed is between the mother and one of the children. She submits that there is one comment said to have been made by the mother to the father and one other comment said to have possibly been made by the father or by another person. The mother submits that this would not be sufficient to meet the statutory definition of ‘principal party’.
I do not accept the mother’s submission. The father gave evidence in his affidavit that he, the mother and W attended a meeting on 9 August 2015 at the mother’s home with a priest from their church. The father participates in the course of the conversation. I consider that he was a principal party to the conversation within the meaning of s.4 of the Surveillance Act.
The father submits that his ultimate purpose to make the recordings was the protection of his children from abuse and ill treatment. He submits that such a motive was reasonably necessary to protect his lawful interest in having such behaviour exposed to protect his children.
In Latham & Latham,[6] Le Poer Trench J was referred by counsel to the decision of Sepulveda v R.[7] It was held in that case, that in the statutory context ‘reasonably necessary’ means appropriate but not essential - that is, it is sufficient if the recording is reasonably appropriate rather than essential for the protection of the lawful interests of the person. It was also held that reasonable necessity should be judged objectively upon the grounds that exist at the time of the recording.
[6] Ibid.
[7] [2006] NSWCCA 379.
Justice Le Poer Trench accepted the husband’s submissions that the recordings were reasonably necessary to protect his lawful interests which included:
the likelihood that the wife would deny conversations between herself and the children. The fact that the husband needed to protect himself from the risk of the accusation that he had fabricated the conversations (between the mother and children) reported in his affidavit. To avoid being labelled as a liar… The husband’s submissions that in the context of having parental responsibility for the children and an obligation to protect their interests and his own interests, those interests were by definition ‘lawful interests’.[8]
[8] Ibid, at para 13 & 15.
Even if it is accepted that the ‘lawful interests’ of the father include an obligation to protect the children’s interests and his own interests, the mother submits that the making of the recording was not reasonably necessary for the protection of those interests.
In Huffman & Gorman,[9] in relation to the exception under s.7(3)(b)(i) Foster J noted:
It is well settled that an intention to make an irrefutable recording of a conversation to which one is a party will not, without more, satisfy the exclusionary provision. The circumstances in which the recording occurs will be relevant to the determination of whether there was a reasonable necessity for doing so (see R v Le [2004] NSWCCA 82).[10]
[9] [2014] FamCA 150.
[10] Ibid, at para 48.
The mother submits that the recording is not reasonably appropriate when judged objectively in the context of the time of the recording.[11] It is argued by the mother that at the time of the recording, the father was engaging in a “fishing expedition” for evidence that would assist his case. The mother referred to the evidence of the father that he:
decided to use the listening device to gather evidence of any ill-treatment of the children by Ms Gawley in the home whilst I was not there to protect them. If Ms Gawley did ill treat them, then I would have evidence to seek help and protection for my children from external authorities such as Family and Community Services or the Police.[12]
[11] Ibid.
[12] Father’s affidavit sworn 18 May 2016, at para 3(f).
I accept the submissions of the father and the ICL that the lawful interests of the father, being a principal party to the conversation, include an obligation to protect not only his interests but also the interests and protection of the children. The father has a lawful interest as a parent of the children to protect them from risk of harm.
I consider that it was reasonably appropriate for the father to record the conversation. The father said that he arranged a meeting to discuss concerns about the mother’s behaviour towards W. I agree with the submission of the father that the context of the recording of this conversation was his concern in relation to an alleged assault on W. He reported the incident to Child Protection Services on 15 September 2015.
As I have indicated, the father’s evidence is that he was present during the meeting on 9 August and listened to and participated in the conversation.
I therefore find that the provisions of s.7(3)(b)(i) of the Surveillance Act apply. The recording of the conversation was reasonably necessary for the protection of the lawful interests of the father. Paragraph 3(o)-(p) about the conversation in the father’s affidavit sworn 28 May 2016 is not rendered inadmissible. The transcript would therefore not be inadmissible subject to its accuracy.
If I am wrong about the 9 August 2015 conversation falling within the exception of s.7(3)(b)(i) of the Surveillance Act, I would exercise my discretion to admit this evidence pursuant to s.138 of the Evidence Act. I discuss this below.
The weight which can be given to the evidence is another issue. The Court has a discretion about that.
Should the transcript evidence be admitted pursuant to s.138 of the Evidence Act?
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.
In this matter, Counsel for the ICL adopts the father’s submissions and relies on the decision of Huffman & Gorman (No 2),[17] in which Hannam J provided an analysis of the factors listed in s.138(3) against the background of that case. Her Honour ultimately concluded that the material in question ought to be admitted, given the nature and object of parenting proceedings. Justice Hannam concluded at paragraph 44 that:
The desirability of admitting evidence of family violence in a hearing where the best interests of children are paramount outweighs the undesirability of admitting evidence which was obtained unlawfully.
[17] [2014] FamCA 1077.
Transcripts of 24/7, 4/8 and 10/8/2015
I am of the view that there is no evidence in either the summary of 24 July 2015 or the summary of 26 July 2015, which has probative value about the father’s concerns of the mother’s parenting capacity. I agree with the mother’s submission that as the father was not present, he is unable to ascertain who made various sounds.
The summary of 4 August 2015 includes the father’s commentary about the mother screaming at Z and on two occasions she says, “he is shit”. There is commentary by the father that the mother is arguing with (omitted) and screaming at (omitted) loudly “but the words are not clear”. The summary reads that Z fell off a chair, he cries very hard and the mother continues screaming. The father provides commentary such as “Z makes noises like he wants to vomit… Z is crying a lot until he sounds like he is suffocating”. There is further commentary about the mother screaming at Z.
I agree with the mother’s submission that the father makes assumptions about what he heard and is asking the Court to infer from this, that the mother has been negligent in her care of Z.
The summary of 10 August 2015, (approx. 21:10 hours) reads that the mother is talking on the telephone and the twins are near her. She says, “the twins came to me today and asked me to sleepover with Mr Bass. I said to them no you are not sleeping with Mr Bass, only on Friday…Mr Bass is a liar liar…” There are further comments made by the mother about the father. I agree with the mother’s submission that the father makes an assumption that the twins are near her. He makes assumptions about what they overheard the mother say to a third party.
Having regard to the transcript summaries, I am not satisfied that the evidence is “potentially high” or “potentially important”.[18] I do not consider that this has probative value about the mother’s attitude towards the father and veracity of her concerns about his parenting capacity.
[18] Latham & Latham [2008] FamCA 877, at para 28.
The ICL submits that the evidence is such that the desirability of admitting the evidence outweighs the undesirability of admitting it obtained in the way it was. She adopts the father’s submissions, particularly in regard to the decision of Huffman & Gorman (No 2).[19]
[19] [2014] FamCA 1077.
In Huffman & Gorman (No 2),[20] Hannam J considered the father’s conduct in recording conversations between himself and the mother, without her knowledge and consent, as being at “the less serious end of the spectrum”.[21] Justice Hannam referred to the fact that the recordings were made in his own home and were of conversations with his then wife.
[20] Ibid.
[21] Ibid, at para 41.
In Latham & Latham,[22] Le Poer Trench J was of the view that the impropriety demonstrated by the husband in obtaining the evidence was “not gross”.[23] His Honour also referred to the fact that the recordings were made in the confines of the ordinary function of a family and it was accepted not to have been contrived or manufactured by the father.
[22] [2008] FamCA 877.
[23] Ibid, at para 28.
I accept the mother’s submission that the circumstances of these recordings are different to the circumstances in Huffman and Latham. Here, the father secretly recorded conversations to which he was not a party in the mother’s home. These recordings were not made in the confines of a family. The father’s impropriety of making the recordings was deliberate. An AVO has been made against him as a result. He has interfered with the privacy of the mother.
Having regard to these matters, I am not persuaded that the desirability of admitting the balance of the transcripts outweighs the undesirability of admitting them in the way they were obtained.
Even if the accuracy of these transcripts can be proved, I consider that they should be excluded.
9 August conversation in the affidavit sworn 18 May 2016
In respect of the 9 August 2015 conversation, I consider the evidence is potentially important. It contains relevant evidence about the mother’s conduct towards W and her attitude to parenting. Evidence of family violence is relevant in determining what orders will best promote the interests of the children.
The evidence is relevant, as credibility of the parties is likely to be an issue. The father’s credibility about his account and recording of the conversation may be in issue. The mother’s evidence about what she did to W may be in issue.
The father’s evidence is that he was present during the conversation and participated in and listened to the conversation.
Balancing all the considerations above, including the relevant considerations in paragraph 72 above, I am of the view that the evidence in the father’s affidavit about the 9 August conversation should be admitted. This does not excuse the improper and unlawful conduct of the father.
9 August transcript
Counsel for the father assumes the accuracy of the transcript of the conversation in Annexure “A”. Its accuracy and integrity is disputed by the mother. It has not been transcribed by an accredited transcript service. The account of the conversation that the father gives in his affidavit is different from what he said is recorded. Parts of the conversation, which the father details in his affidavit, are not included in the transcript.
Its accuracy cannot therefore be proved at this interim stage. The transcript of 9 August 2015 is therefore not admitted at this stage.
Subject to proof of accuracy by independent transcription and translation, the admission into evidence of the transcript of 9 August 2015 could be considered.
Section 135 of the Evidence Act
The mother also submits that the Court should exercise its discretion pursuant to s.135 of the Evidence Act to exclude the transcripts.
I am not persuaded that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the mother or misleading or confusing. I consider that the evidence has probative value. I do not consider that there will be an undue waste of time in analysing the 9 August 2015 transcript.
Public Policy
The mother submitted that as a matter of public policy the court should not have regard to evidence obtained in a clandestine manner, as it sends a message to this litigant and to others that should they obtain evidence in this way the Court will sanction their actions by permitting them to use such evidence.
The undesirability of admitting this evidence must be weighed and balanced on the facts of each individual case and the issues involved. I am not persuaded that the evidence should not be admissible for this reason.
Conclusion
Paragraphs 3(o) and (p) of the father’s affidavit, sworn 18 May 2016, in respect of the 9 August 2015 conversation, are admitted.
I consider that paragraphs 3 (a) - (n) and (q) - (s) of the affidavit, are relevant in respect of the circumstances of the father placing the listening device in the mother’s home and are admitted.
I consider that Paragraph 2 and paragraphs 3 (t) and (u) of the affidavit are irrelevant and are struck out.
Annexure “A” is struck out, apart from the transcript of 9 August 2015, which is marked for identification.
Costs
On 19 May 2016 I ordered the parties to make, file and serve written submissions regarding the issue of costs incurred on that day. The mother has not provided any submissions about costs. I therefore reserve the question of costs.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date:1 August 2016
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