Gawley & Bass

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.