Hazan & Elias
[2011] FamCA 376
•24 May 2011
FAMILY COURT OF AUSTRALIA
| HAZAN & ELIAS | [2011] FamCA 376 |
| FAMILY LAW – CHILDREN - EVIDENCE – Where the husband secretly taped his interview with the family consultant – Whether the recording and its transcript are admissible – Interpretation of section 11C of the Family Law Act 1975 – Whether section 11C of the Family Law Act ousts the provisions in section 138 of the Evidence Act 1995 – Whether Rule 1.19 of the Family Law Rules 2004 is an ‘Australian law’ – Where evidence was obtained in breach of an Australian law – Where evidence was obtained improperly – Consideration of discretion under s138(3) of the Evidence Act 1995 – Recording and its transcript inadmissible |
| Family Law Act 1975 (Cth) Evidence Act 1995 (Cth) Invasion of Privacy Act 1971 (Qld) |
| Ames & Ames 825 (2009) 42 Fam LR 95 CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Droit de la famille [2009] RDF 118 Employee Advocate v Williamson (2001) 111 FCR 20 Fagenblat & Feingold Partners Pty Limited [2001] VSC 454 Gray v Pearson (1857) 10 ER 1216 Harrington v Lowe (1996) 190 CLR 311; (1996) FLC 92-668 Kingley & Arndale (No. 2) (2010) 44 Fam LR 492 Latham & Latham [2008] FamCA 877 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Nepean & Treloar [2010] FamCA 781 Northern Territory v Collins (2008) 235 CLR 619 Northern Territory of Australia v GPAO (1999) 196 CLR 553 Parker v Comptroller-General of Customs (2009) 252 ALR 619 Perpetual Executors and Trustees Assoc of Australia Ltd v FCT (1948) 77 CLR 1 Ponzio v Multiplex (2005) FCA 522 Rees v Shaw (2009) FMCA fam 178 Reisner & Reisner [2010] FamCA 473 Reisner & Reisner (No. 2) [2010] FamCA 678 Shire President v Board of Land & Works (1904) CLR 679 South Australia v Tanner (1989) 166 CLR 161 Toope v Toope (2000) 8 RFL (5th) 446 Tripp & Tripp [2010] FamCA 691 Tryon & Clutterbuck & Attorney General of the Commonwealth (2010) 246 FLR 193 |
| APPLICANT: | Ms Hazan |
| RESPONDENT: | Mr Elias |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 442 | of | 2010 |
| DATE DELIVERED: | 24 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 6 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | Lehmann Featherstone |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Victoire |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
(orders made 6 May 2011)
The father’s Application which he filed under cover of an email dated 20 April 2011 that the recording on the SD card held on the court file pursuant to order 8 of 21 March 2011 be adduced into evidence in proceedings CSC 442/2010, be dismissed.
The application to tender in evidence a transcript of the SD card or a CD copy of that SD card referred to in order 1 be dismissed.
Notation:
Given the complexities of the arguments that I have heard today, I will deliver my reasons at a later time.
It is noted that publication of this judgment under the pseudonym Hazan & Elias is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 442 of 2010
| Ms Hazan |
Applicant
And
| Mr Elias |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 19 January 2011, the father had an interview with Ms O, a family consultant, so that a family report could be prepared. At the beginning of the interview the father agreed with the family consultant, that he would need her consent to tape the interview, but the father secretly recorded the interview. The preliminary issue is whether the recording and a transcript of it are admissible, in the hearing of the father’s further interim application for Ms O to be removed as the family consultant, her two reports to be excluded from evidence and a new report ordered. The recording was made in the State of Queensland.
The father’s argument mostly centres around his assertion that s 11C Family Law Act 1975 (Cth) (“FLA”) gives him an absolute right to have the tape and its transcript admitted and removes any discretion the court might have to prevent him from tendering those documents as evidence.
The mother claims that the recording and its transcript should be excluded, as a matter of discretion, because it was obtained illegally and/or improperly and because the admission of the evidence may cause an undue waste of time.
The substantive matter before me is child related proceedings and the central issue is about what time, if any, R, born in January 1999, aged 12 years, spends with her father on an interim basis.
The recording was copied onto a CD. The CD and its transcript have been admitted as an exhibit for the purpose only of the consideration of the preliminary issue.
BACKGROUND
On 21 December 2010 an order was made pursuant to s62G FLA, that:
A family report be prepared in this matter on an urgent basis. The report writer is asked to address any matters that the report writer considers relevant under s 60CC(2) and (3) Family Law Act and in particular issues arising from the affidavits filed by the respective parents in this matter to date.
On 19 January 2011 Ms O, a family consultant, interviewed the father for that report.
On 21 March 2011 the father informed me in court that he had recorded the interview on 19 January 2011 on a digital Dictaphone and we had the following exchange:
HIS HONOUR: Which session did you record, [Mr Elias]?
[MR ELIAS]: The first session. The family report session. My interview.
HIS HONOUR: And did you tell [Ms O] that she was being recorded?
[MR ELIAS]: No, no, I didn’t tell her. I consider that is in the interests of children that the truth be paramount and that the best evidence be presented to the court.
The transcript of this part of the conversation between the family consultant and the father contains more than Mr Elias indicated and is as follows:-
[MS O]: Obviously, everything you say can be used in my report.
[MR ELIAS]: Yes
[MS O]: And if you were going to tape me or do anything like that you would have to ask me for my consent first.
[MR ELIAS]: Yes
[MS O]: I take notes, obviously. It’s a big assessment and a big report.
[MR ELIAS]: Can I take notes?
[MS O]: You can take notes, yes.
[MR ELIAS]: Great, yes.
[MS O]: I will take notes of whatever I think is relevant, to be used in my report later.
[MR ELIAS]: I understand.
[MS O]: Okay.
During this conversation the father’s digital dictaphone was recording and the father asserts it continued to record throughout the interview. I invited the father to make comment about this conversation he had with the family consultant but he indicated that he had no comment to make.
DOCUMENTS RELIED UPON
The father relied upon an affidavit sworn 21 March and filed 22 March 2011 which was 175 paragraphs in length and an affidavit sworn by him on 19 April and filed 20 April 2011. The father also relied upon the CD and the transcript. Counsel for the mother provided written submissions. Counsel for the Independent Children's Lawyer provided written submissions. Both parties and the Independent Children's Lawyer made oral submissions. For the purposes of this application, I also have in evidence before me the reports of Ms O dated 28 January 2011 and 18 March 2011.
The father refers to paragraphs 1 and 3 of the mother’s affidavit of 29 April 2011 in which the mother refers to a communication that she received from Ms O.
ISSUES TO BE DETERMINED
The father argues that the words of s 11C FLA are clear and says that section gives him an unfettered right to have the tape and the transcript admitted. The father said that in the circumstances of this case, that s 11C FLA ousted s 138 of the Evidence Act 1995 (Cth) (“EA”) (relying upon s 8 EA). The father asserts that no matter how irrelevant, illegally or improperly obtained, or how much of a waste of time the consideration of the evidence might be, the evidence must be admitted given the clear words of the statute.
The mother seeks to exclude the tape and its transcript. The mother argues that the tape has been:
14.1.obtained illegally (s 138 EA); and/or
14.2.obtained improperly (s 138 EA and r 1.19 FLR); and
14.3.should be excluded because its probative value is substantially outweighed by the danger that its admission may cause or result in undue waste of time (s 135(c) EA).
The Independent Children's Lawyer argues the tape was not illegally obtained but was improperly obtained. Nonetheless the Independent Children's Lawyer submits the court should exercise a discretion to allow the recording into evidence.
In respect of the issue of illegality, the mother concedes that the effect of the Invasion of Privacy Act 1971 (Qld) (“IPA”) is that in Queensland one party to a conversation may secretly record that person’s private conversation with another person and may communicate that recording to a court (see sections 4, 43 and 45 of IPA). However what is contended by the mother is that the father has breached rule 1.19 Family Law Rules 2004 (Cth) (“FLR”) which provides a party cannot record a court event. The father says in response that the interview is not a court event but even if it was the provision of s 11C FLA conflicts with rule 1.19 FLR and accordingly the rule is invalid.
The timing of the ruling I am asked to make
Counsel for the mother suggested that given the family consultant has not yet been given an opportunity to reply to cross examination, there is some force in the notion that the issue of the admissibility of the tape should be determined at the final stage of the hearing (see Employee Advocate v Williamson (2001) 111 FCR 20 but compare Ponzio v Multiplex (2005) FCA 522).
The difficulty with that suggestion is that the father has applied for the family reports to be eliminated as evidence to be used in any future interim or final hearing and for new reports to be ordered before a final determination is made. I find that it is appropriate to deal with the issue of the admissibility of the recordings at this time.
STATUTORY INTERPRETATION
The original so-called "golden rule" of construction was expressed in Gray v Pearson (1857) 10 ER 1216 at 1234, where Lord Wensleydale said:
“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency, but no further.”
In Shire President v Board of Land & Works (1904) CLR 679, Griffith CJ spoke about there being some other provision in an Act which makes a meaning absurd, and said:
“Now, the word "absurd," when used in reference to an Act of Parliament, is not used in the sense that the Legislature has, in passing the Act, done something which, in the opinion of some persons, is absurd, but as indicating that the construction sought to be put upon it leads to a manifest absurdity on the face of it. The court is not called upon to inquire whether it was a wise thing for the Legislature to do, but it has to find out what are the express intentions of the Legislature. The court is to express no opinion on the unreasonableness of the Legislature. Any argument on that view points to the opposite direction.
In Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, Mason and Wilson JJ said that “departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency” and later that:
“In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction
The rules, as D C Pearce says in his Statutory Interpretation p 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the Legislature.
On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”
In CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384, Brennan CJ, Dawson, Toohey and Gummow JJ said:
“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.”
The High Court in Northern Territory v Collins (2008) 235 CLR 619 at paragraph 99 said:-
“The applicable principles of construction can be shortly stated. Construction must begin with a consideration of the text itself. The meaning of the text cannot always be determined in isolation from its context, which includes the general purpose and policy of the provision, in particular the mischief which the stature was designed to remedy. Secondary material seeking to explain the words of the statute cannot displace the clear meaning of the text of the provision, not least because such material may confuse what was ‘intended…with the effect of the language which in fact has been employed’ (footnotes omitted)”
Reference to extrinsic material is permitted if the preconditions referred to are satisfied and/or those described in Section 15AB Acts Interpretation Act 1901 (Cth) (“AIA”) are satisfied.
SECTION 11C FLA
Section 11C FLA was introduced into the FLA by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the 2006 Act”) and is in the following terms:
FAMILY LAW ACT 1975 - SECT 11C
Admissibility of communications with family consultants and referrals from family consultants
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family consultant performing the functions of a family consultant; or
(b) a person (the professional) to whom a family consultant refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is admissible in proceedings under this Act.
Note 1: Communications with family consultants are not confidential (except in the special circumstances set out in subsection 38BD(3) in relation to consultants having several roles).
Note 2: Subsection (1) does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act.
(2) Subsection (1) does not apply to a thing said or an admission made by a person who, at the time of saying the thing or making the admission, had not been informed of the effect of subsection (1).
(3) Despite subsection (2), a thing said or admission made is admissible even if the person who said the thing or made the admission had not been informed of the effect of subsection (1), if:
(a) it is an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) it is a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
An admission can be in writing (see, for example, the definitions of “admission”; “previous representation” and “representation” in the Dictionary to the EA). There is no reason to restrict the word “said” to the spoken word. A family consultant can say something by writing it. Part of the function of a family consultant is to produce written reports and, if required, be tested on them during contested proceedings.
It is obvious that s 11C(1) FLA does not contain any words which indicate that it is subject to any other provision in the FLA or any other Act. It is an argument in the father’s favour that other legislation does contain such a provision. The most notable is s 56 EA which is in the following terms:
“(1) Except as otherwise provided by this Act, evidence that is relevant in proceedings is admissible in the proceedings.
(2) Evidence that is not relevant in the proceedings is not admissible.” [emphasis added]
Another more subtle example is s 69ZV(2) FLA which says:
Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
This subsection excludes the hearsay rule in relation to statements made by children but maintains all other evidentiary rules that might otherwise exclude that evidence (for example s69ZT(3)).
Having noted the lack of any expressed limitation in s 11C(1) FLA making it subject to any other provision in the FLA or any Act, I find that it is of some importance that the 2006 Act also introduced two other evidentiary sections which seem contradictory to s 11C FLA. Those sections are ss 69ZU and 69ZT(1) FLA. In addition, s 11C FLA seems to be incongruent with the already existing s 62G(8) FLA.
Section 69ZU FLA says:
69ZU
The court must not, without the consent of the parties to the proceedings, take into account an opinion expressed by a family consultant, unless the consultant gave the opinion as sworn evidence.
As can be seen, s 69ZU FLA deals with opinions that are expressed by the family consultant and says that those opinions are not to be taken into account unless the parties consent to that happening or the family consultant has given that opinion as sworn evidence. This section would appear to be contradictory with s 11C FLA. A family consultant might during the course of the interview with a party express an opinion. Almost always a family consultant will express an opinion in the written report produced under s 62G FLA or reporting to the court about an appointment with a parent under s 11F FLA. In either case the family consultant is performing the functions of a family consultant and on its face, s 11C FLA says that what the family consultant says is to be automatically admitted into evidence. Yet s 69ZU FLA says that that opinion not be taken into account unless it is verified by the family consultant or by consent.
Section 62G(8) FLA says:
Section 62G(8)
A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
Subsection 62G(2) FLA allows the court to direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable and that is what has happened in this case.
The Full Court in Tryon & Clutterbuck & Attorney General of the Commonwealth (2010) 246 FLR 193 emphasised:
Family reports “may” be received in evidence in proceedings under the Act (s 62G(8)), they are not automatically entitled to be received in evidence. The tender of the report may be challenged on the bases identified by senior counsel for the Tryons, (that the report has been “contaminated” on any basis, for example, bias; there has been a departure from standards of fairness and impartiality in its preparation) or on other bases (e.g. s 135 of Evidence Act 1995). [italicised words added]
Section 62G(8) FLA deals with the admission into evidence the content of the family consultant’s report. In the vast majority of cases, the report contains the evidence from the family consultant of what was said by those interviewed for the report and by the family consultant and any admission made by the party. It also contains stated opinions by the family consultant. Section 62G(8) FLA gives a discretion to the Court to not admit the report on bases such as those referred to by the Full Court in Tryon and Clutterbuck. On the other hand, the father would assert that s 11C FLA would mean that no matter what lack of procedural fairness had been afforded to the parties, no matter how irrelevant certain material in the report was, no matter what illegality is perpetrated during the interview, no matter what waste of time dealing with certain parts would involve, the Court is required to admit the report. It can be seen therefore that one section mandatorily requires the admission of the report, the other section gives the court a discretion whether or not to receive the report.
DIVISION 12A PART VII FLA
A key part of the 2006 Act was the introduction of less adversarial trial procedures in child related proceedings under the Act. Those provisions are contained in Division 12A of Part VII of the FLA.
Section 69ZN FLA sets out the principles for conducting child related proceedings For example principle 2 is for the court to actively direct, control and manage the conduct of the proceedings, and principle 5 is for the court to ensure that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. Section 69ZQ FLA set out general duties of the court in the child related proceedings. Section 69ZR FLA empowers the court to make interim findings of fact and determination of issues without necessarily placing a judicial officer in the position of having to disqualify themselves if they had done that.
One other important part of Division 12A deals with how the rules of evidence apply in child related proceedings. Prior to the 2006 Act, the Family Court was bound by the rules of evidence in child related proceedings (see Northern Territory of Australia v GPAO (1999) 196 CLR 553 McHugh and Callinan JJ at paragraph 198, and Gaudron J at paragraph 139). Section 69ZT FLA relaxes some of the rules of evidence in child related proceedings. Section 69ZT FLA says:
69ZT
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
So it follows that unless it is an exceptional case, evidentiary rules in relation to hearsay, opinion, admission, tendency and coincidence, credibility and character do not apply. Inferentially however, s 69ZT FLA (which was introduced by the same piece of legislation as s 11C FLA) retains, inter alia, the evidentiary rules of relevance, improperly and illegally obtained evidence, and the discretion of the court to properly control its processes by assessing the probative value of the evidence against the danger of the evidence causing or resulting in an undue waste of time. Read literally s 11C FLA would abandon these evidentiary rules when considering anything said by or in the presence of a family consultant.
I find that the words of s 69ZU, s 62G(8) and s 69ZT(1) FLA are inconsistent with the words of s 11C FLA. It should be assumed that the Commonwealth did not wish to contradict itself and therefore it is reasonable to conclude that the inconsistencies were not intended.
Provisions of general application give way to specific provisions when they are in conflict (see for the example the discussion by Dixon J in Perpetual Executors and Trustees Assoc of Australia Ltd v FCT (1948) 77 CLR 1 at 29-30).
Section 11C FLA allows anything said by or in the presence of the family consultant into evidence. I find that is a general provision. Sections 69ZU and 62G(8) FLA are more specific provisions in relation to parts of what a family consultant has said and 69ZT(1) FLA is a more specific provision, in child related proceedings, relating to the admission or exclusion of evidence which has particular characteristics.
Section 15AA(1) AIA provides:
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote the purpose or object.
Section 15AB AIA deals with the use of extrinsic material and the interpretation of an Act and allows extrinsic material to be used to determine the meaning of a provision where the ordinary meaning conveyed by the text of the provision, taking into account the purpose or object underlying the Act, leads to a result which manifestly is absurd or unreasonable.
The objects of Part VII FLA are set out in s 60B(1) FLA. They do not assist me in reconciling the construction of the provisions of the FLA to which I have referred. Importantly however, the principles set out in s 69ZN FLA (see above) do guide the court in the way child related proceedings should be conducted. Those principles for example, allow the court to actively direct, control and manage the conduct of proceedings and to ensure that the proceedings are conducted without undue delay. Section 69ZT FLA is consistent with those principles.
I find the ordinary meaning of s 11C FLA, taking into account its context in the Act, to be unreasonable if it leads to a result contended for by the father. The father asserts that all evidence of things said by or in the presence of a family consultant is admissible notwithstanding whether those things said are relevant, whether or not the evidence of things said is improperly or illegally obtained or whether they would involve the court in an undue waste of time.
The interpretation of s 11C FLA suggested by the father would lead to a radical change in the way that family consultants have done reportable interviews with parties over 35 years.
Allowing the father to introduce this material in the circumstances of this case opens a flood gate. As counsel for the wife indicated, he would feel duty bound in all circumstances to advise clients to secretly record the interview with the family consultant. Presumably there would then be some analysis of the recording by the person secretly making the recording to see whether or not on balance it was worthwhile releasing the recording that had been made.
There would always be doubt about secret digital recordings. The father said that he had not manipulated his secret digital recording in any way and that statement was not challenged. More generally, however, it is common knowledge that a digital audio track may be recompiled in ways which are difficult to detect. To allow systemic secret recording of interviews with family consultants creates a distinct risk of serious mischief.
The father in this case suggests that that risk can be eliminated if all interviews by family consultants were recorded by video equipment. The father submitted that after 35 years of no reform, it certainly is time for reform. He submitted that the States have taken the initiative not only in criminal proceedings but also with public authorities. He submitted “the secrecy in this case is not the recording. The secrecy in this case is using the facts that the reporter chooses to use and present them in a way that she chose to present and in doing that in this case she has exposed herself to contest in relation to her impartiality, selective omission, selective inclusion. Now, if she went into that interview knowing that there’s a camera there, then it’s all transparent. We all move on in a positive and productive way”.
The father’s interpretation of s 11C FLA creates another manifestly absurd or unreasonable outcome. In some more complex cases, the court, instead of using a family consultant (who is usually a qualified psychologist or social worker with experience in preparing reports in a forensic environment), may order a report from an external expert such as an adult and child psychiatrist pursuant to Chapter 15 FLR. Had that happened in this case, the father’s recording with that report writer, would have been subject to the rules of evidence applicable in child related proceedings. Apart from the complexity and the facts of individual cases, there is no fundamental difference between an interview with a family consultant and one with a Chapter 15 expert.
The interpretation of s 11C FLA proffered by the father would lead to other manifestly absurd or unreasonable results. Take for example what happened in the matter of Reisner & Reisner. Over several days a hearing of a child related proceeding took place before a judge who then assented to an application that he disqualify himself in circumstances where it was asserted there had been out of court conversations between the judge and the family consultant (see Reisner & Reisner [2010] FamCA 473; also referred to in Kingley & Arndale (No. 2) (2010) 44 Fam LR 492 at paragraph 5(b)). The family consultant had given evidence and been cross examined in the proceedings before the judge. The question arose in the re-hearing before Stevenson J as to what use, if any, Her Honour should make of the transcript of, inter alia, the family consultant’s evidence at the aborted hearing. Her Honour, properly in my view, said that she would not have countenanced its use, for any purpose, without the full and free consent of all the parties. The oral evidence of the family consultant at the first hearing was objected to and accordingly Her Honour did not read the transcript of the evidence of the family consultant. She heard the family consultant’s evidence afresh (see Reisner & Reisner (No. 2) [2010] FamCA 678). If the father’s interpretation of the effect of s 11C FLA is correct, and had one of the parties or the Independent Children's Lawyer insisted, Her Honour would have had no discretion to exclude the transcript of the oral evidence of the family consultant at the first trial because clearly that evidence was given by the family consultant, in the role of expert, fulfilling his functions as a family consultant in the witness box at the aborted hearing.
Ironically, the husband wishes to tender the tape in interim proceedings in which he seeks to exclude the family report which contains the family consultant’s rendition of things said during her interview with the parties and the children and statements by the family consultant of her opinion. If the father’s interpretation of s 11C FLA is correct, there would be no basis to exclude the family report.
The extrinsic material that may be considered includes any report that was laid before either House of Parliament before the time when the provision was enacted (s 15AB(2)(b) AIA); any relevant report of a committee of Parliament (s 15AB(2)(c) AIA) and explanatory memorandum (s 15AB(2)(e) AIA). I bear in mind the desirability of persons being able to rely upon the ordinary meaning conveyed by a provision of an Act when considering this extrinsic material (see s 15AB(3) AIA). The revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) refers to the fact that the bill amends the FLA to implement a significant number of recommendations the report of the House of Representatives Standing Committee of Family and Community Affairs (FCAC) Inquiry into child custody arrangements in the event of family separation. The report, entitled ‘Every Picture Tells a Story’ was released on 29 December 2003. The report was subsequently considered and reported upon by the House of Representatives Standing Committee on Legal and Constitutional Affairs. The revised explanatory memorandum comments in relation to the financial impact of the Bill. Resources were approved in the 2005/2006 budget process for a community education campaign and for additional dispute resolution services to satisfy increased demand cause by compulsory pre-filing dispute resolution. Community based centres (the Family Relationship Centres) were set up outside the Court as part of these overall reforms. They provided confidential counselling services, previously provided by family consultants, as part of the work within the court. The confidential counselling function of the family consultants within the Court was taken away and could then only be exercised at the discretion of the CEO of the Family Court and the Federal Magistrates Court (see s38BD(3) FLA). Consequently the 2006 amendments changed the role of family consultants within the court and that role has become one of almost exclusively providing services which are “on the record” and “reportable”. The previous guarantee of confidentiality for a family consultant when doing confidential work, was now no longer usually available (see the former s 19N FLA which was repealed by the 2006 Act and which was in similar terms to the provisions currently contained in ss 10E and 10J FLA for family counsellors and family dispute resolution practitioners).
The revised explanatory memorandum provides the following information about the introduction of s 11C FLA:-
181. The primary distinction between `family counsellors' and `family dispute resolution practitioners' (who mainly provide services in the community) on the one hand, and court-based `family consultants' on the other, is that the former will provide confidential services and evidence of anything said or any admissions made during those processes will be inadmissible.
182. The services provided by `family consultants' will not be protected by confidentiality and evidence of things that are said to a family consultant will be admissible in proceedings under the Act, provided the person concerned has been informed that disclosures made to family consultants are admissible.
183. A communication made when a professional consultation is being carried out on referral from a family consultant is also admissible in proceedings under the Act, provided that the person concerned has been informed that such disclosures are admissible.
184. Note 2 clarifies that the fact that subsection 11C(1) provides that communications with a family consultant or with a professional to whom a person has been referred by a family consultant are admissible in proceedings under this Act should not be interpreted as implying that such communications are inadmissible in other proceedings (such as, for example, criminal proceedings).
185. Subsection 11C(3) provides that even in cases where a person has not been informed that communications with a family consultant or with a professional to whom a person has been referred by a family consultant are admissible, communications that indicate that a child under 18 has been abused or is at risk of abuse may be admitted as evidence, unless there is sufficient evidence of the admission or disclosure available to the court from other sources. This reflects current section 19N of the Act, and sections 10E and 10J of this Schedule, which relate to the admissibility of communications in family counselling and family dispute resolution, respectively.
It can be seen that s11C FLA was aimed at lifting the confidentiality which up until that time accompanied many of the services provided by a family consultant.
As I have said, the interpretation of s 11C FLA suggested by the father would lead to a radical change in the way that family consultants have done reportable interviews with parties over 35 years. It is not apparent from anything in the explanatory memorandum that Parliament intended the radical change for which the father contends.
There is no indication in the explanatory memorandum of any consultation with the social science profession or any indication of how they would view having their reportable work electronically recorded. It is commonly known that family consultants do not base their opinions solely upon what someone is saying in an interview but also on their presentation as they say it and family reports frequently contain descriptions of the demeanour of an interviewee. There is no indication in the revised explanatory memorandum that there was any budgetary provision for the expenditure that would be required in introducing recording equipment (probably requiring at least two video cameras) into any session conducted anywhere by a family consultant. Although less usual in these times, there is still places in Australia where family consultants do interviews with parents and children in their own homes (home visits).
In his affidavit, the father refers to the practice of “verballing” by “incompetent and bias” family consultants who he notes are court appointed officials. By verballing, the father meant in this case that the family consultant was attributing to him things that he did not say. The father implies that his interpretation of s 11C FLA would “quash” the practice of “verballing” by court appointed officials.
The reasons for judgment in many parenting cases have been published over the years and since the introduction of the internet in recent times, virtually all judgments published are available to the public. The father has not pointed to any judgment or any group of judgments that a court has found that a party has been “verballed” by a family consultant.
There is no indication in the report “Every Picture tells a Story”; the second reading speech by the Minister; the report by the House of Representatives Standing Committee on Legal and Constitutional Affairs or the revised Explanatory Memorandum which would indicate that the intention of Parliament was to address an identified problem of “verballing” by family consultants.
The father submitted that the court is able to take judicial notice of the abundant evidence in reported family cases in the public domain in which the reports of family consultants have been discarded because they were inherently unreliable. He asserted that such outcomes often involved a lot of wasted time, money and court resources. When challenged to identify examples of the cases to which he referred, he was unable to do so and in submissions in reply the father seemed to back away from this submission.
Counsel for the mother in his written submissions has identified only three reported cases where family reports have been discharged. The cases were:
61.1.Rees v Shaw (2009) FMCA fam 178 where Henderson FM excluded reports based on inappropriate statements by the report writer to the solicitor for the mother together with unacceptable answers in cross examination;
61.2.Nepean & Treloar [2010] FamCA 781, where Fowler J discarded the single expert (psychiatrist) when it emerged he had, unknown to the other side, been inappropriately provided with material by the other side; and
61.3.Kingley & Arndale (cited above), where O’Reilly J made orders similar to those now sought by the father in circumstances where it was found (at paragraph 11) there was an extra curial communication between a report writer and a judge concerning the case.
Again, there is no indication in any of the extrinsic material that there was a problem with family reports being regularly rejected by courts exercising jurisdiction under the FLA, which had been identified.
I have found that the words of s 69ZU, s 62G(8) and s 69ZT(1) FLA are inconsistent with the words of s 11C FLA. Although the drafter has not included in s 11C FLA the words “subject to this Act and the provisions of the Evidence Act 1995 that do apply in child related proceedings”, given the inconsistency with the other sections, I intend to read s 11C FLA as if those words were there. Such an interpretation would also avoid the unreasonable results which I have discussed. I find that it was not the intention of Parliament to interfere with the specific rules of evidence which were to be applied in child related proceedings, when legislating to make all work of a family consultant reportable.
I make it clear that the father is not excluded from giving evidence about what has been said during his interview with the family consultant and in fact, he already has done that in his affidavit sworn on 21 March 2011. Whether he will be able to rely upon that evidence at the final hearing, if it is established that it is heavily based on an improperly obtained recording, may be a matter that requires further exploration. There was no objection in relying upon this affidavit in the context of the current interim proceedings.
I reject the father’s contention that s 11C FLA gives him an unfettered right to have the recording and transcript admitted. I read s 11C FLA down so that it is subject to other provisions in the Act and consequently subject to the normal evidentiary provisions as referred to in s 69ZT(1) FLA. The provisions of the EA consequently apply and in particular, s 56(2); s 138 and s 135 EA apply to my consideration as to whether the secret recording should be admitted into evidence.
SECTION 56(2) EVIDENCE ACT 1995
This section provides that evidence that is not relevant to the proceedings is not admissible. The definition of what is relevant evidence is quite wide (see s 55(1) EA). The width of the definition is offset by the discretionary rules in ss135 and 136 EA. I am unable to say that the recording and its transcript are not relevant. Except as otherwise excluded by EA, the evidence is admissible.
SECTION 138 EVIDENCE ACT
Was the recording obtained in contravention of an Australian law?
“Contravention” refers to “the action of contravening or going counter to; violation, infringement, transgression” (as per French CJ in Parker v Comptroller-General of Customs (2009) 252 ALR 619 at para 29). His Honour went on to say at paragraph 30:
“Without essaying an exhaustive definition, the core meaning of ‘contravention’ involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done.”
Rule 1.19 FLR is in the following terms:
“1.19 A person must not photograph, or record by electronic or mechanical means, any court event.”
Is rule 1.19 “an Australian law”?
A reference to the expression “an Australian law” is said in paragraph 9 Part 2 of the Dictionary to EA, to be “a reference to an Australian law (whether written or unwritten) of or in force in Australia”.
The Parliament has delegated rule making power to the Judges of the Family Court of Australia or a majority of them for the purposes of making Rules of Court for the practice and procedure to be followed in the Family Court and some other courts exercising jurisdiction under the Act. The High Court in Harrington v Lowe (1996) 190 CLR 311; (1996) FLC 92-668 said:
“It should be noted that the regulation-making power, unlike that provided in s 127 of the 1959 Act, is conferred not upon the Executive but upon the judges of the Family Court. In R v Davison, Dixon CJ and McTiernan J, in the course of discussing those functions which might be committed to Ch III courts by the legislature, although the same functions might be performed administratively, said:
``An extreme example of a function that may be given to courts as an incident of judicial power or dealt with directly as an exercise of legislative power is that of making procedural rules of court... [I]t is clear enough that making rules of procedure may in one point of view be regarded as a legislative function, though in another point of view it may be considered as an incident of judicial power.'' (emphasis added)
I find that rule 1.19 is an Australian law within the meaning of s 138 EA.
Is the father’s interview with the family consultant a “court event”?
The definition in the Dictionary to the FLR of the words “court event” is broad and contains an inclusive non-exclusive definition and is as follows:
“court event includes:
(a) a hearing or part of a hearing
(b) a trial or part of a trial
(c) a conference; and
(d) an attendance by the parties with family consultant as part of the Child Responsive Program”
The Dictionary says Child Responsive Program means “an early intervention program with a focus on children, feedback to parents about the needs of children and the provision to the court of a Children and Parent’s Issues Assessment”. The child responsive program involves parties and children attending a family consultant for interviews and the family consultant preparing a report for the court.
The father and counsel for the Independent Children's Lawyer argued that an interview with a family consultant for the purposes of preparing a s 62G report was not a court event.
The father asserted the court event must, in some way, encapsulate the notion of a judicial tribunal in some form and that because it is acknowledged that a family consultant does not perform an adjudicative function, then the family consultant cannot be involved in a court event. The father made the point that there is no judicial officer present at the interview and asserted that therefore the interview could not be ascribed the designation of a “court event”.
The explanatory statement to the Family Law Rules 2004-2003 number 375 says:
“Rule 1.19: permission to record court event
This is a new rule aimed at informing those that use the court that they must not record by electronic or mechanical means any of the events which take place, including mediation, conferences or hearings without the permission of the court”.
This explanation emphasises the fact that court events are not confined to those conducted by judicial officers.
There are various types of court events. Some are “registrar managed” (see Chapter 12 FLR) and some are “judge managed” (see Chapter 16 FLR).
Although a family consultant conducts the child responsive program, the attendance of the parties and the children at the program is managed by a registrar who has the power to order the parties to attend (S 11F FLA, rule 12.04(2)(b) FLR).
However, in the same way a court may direct a party to attend the child responsive program, a court may direct that a family consultant conduct interviews for a family report with the parties and may order that the parties attend (see s 62G(2) and 62G(5) FLA; r 16.04(1)(v) FLR). As I have said, this is what happened in this case.
The Full Court in Tryon & Clutterbuck & Attorney General of the Commonwealth confirmed the role of the family consultant was that of an expert and commented that the principles governing expert opinion evidence are not in doubt (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). The functions of family consultants are set out in s 11A FLA and include reporting to the court under s 62G FLA (see s 11A(d) FLA).
Family consultants are officers of the court (see s 38M(1)(d) FLA). Only persons having suitable qualifications and experience may be appointed as a family consultant (see s 38R(1) FLA).
The family consultant has the same immunity as a judge (s 11D FLA) and for that reason the father, on the last occasion, abandoned his application for a costs order against the family consultant.
The power for a registrar to order parties to attend the child responsive program and the power of a registrar to order parties to attend for interviews for a family report are both delegated by way of rule 18.06(1) FLR (see items 1 and 17 of table 18.4).
There is no fundamental difference between the powers contained in s 11F(1) and s 62G(5) FLA.
If attendance by the parties with the family consultant as part of the child responsive program is a court event, then so too is the attendance by the parties with the family consultant for the purposes of interviews for the preparation of the report under s 62G FLA. The processes are not fundamentally different, the later being a more expansive version of the former. I find the father’s interview with the family consultant is “a court event” as that term is used in Rule 1.19 FLR.
Is Rule 1.19 a valid rule?
Section 123 FLA is the general power given to the Judges to make rules in respect of practice and procedure. On its face, rule 1.19 FLR is such a rule.
The father submitted that subordinate legislation cannot be inconsistent with an enabling Act. The husband relied upon South Australia v Tanner (1989) 166 CLR 161 (see also Harrington v Lowe cited above). The father asserts that rule 1.19 is invalid on the basis that it affects his right to adduce evidence given to him by s 11C FLA.
Given how I have read s 11C FLA, I find that it does not prevent the judges of the court making the particular practice of recording an interview with a family consultant impermissible.
As already discussed, family reports are prepared based on things said and impressions formed by the family consultant during interviews and other material and information gathered and referred to by the report writer. Over the 35 year history of the court, family reports have been prepared by family consultants based on interviews with clients and children. Those interviews have never been permitted to be recorded electronically. Rule 1.19 FLR is, in part, designed to protect the integrity of the dynamic of that process.
There is nothing to stop a party challenging an assertion by a family consultant that something was said or not said during an interview. There is nothing to stop a party taking notes during an interview or making notes of their recollections shortly after the interview had taken place. The fact that a party can lead evidence of what they say was said during the interviewing process does not mean that s 11C FLA, as I have read it, authorises the secret recording of the interview.
Conclusion about contravention of an Australian law
I find that the father’s interview with the family consultant was a court event. I find that the father was prohibited from electronically recording that event by rule 1.19 FLR. I find that rule 1.19 FLR is a valid Australian law within the meaning of s 138 EA. I find that the father contravened that Australian law when he secretly recorded his interview with the family consultant and that subject to a permissive discretionary ruling, the evidence is inadmissible.
Was the recording obtained improperly?
In the alternative, I need to consider whether the father acted in an improper way. The father has conceded that he made this recording secretly without the family consultant being aware that it was being made and the text of his conversation where he mislead the family consultant is set out above. I do not accept the father’s submission that any conduct that brought truth before a court cannot be improper. Section 138 EA requires a balance to be made between the right of a person to bring material before a court and the dangers of allowing people to engage in improper or illegal activities in obtaining that material. The ordinary meanings of “improper” include, “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong” (per French CJ in Parker v Comptroller-General of Customs cited above at para 29). Most of the reported cases of “improperly” obtained evidence relate to behaviour by the police and other public officials in obtaining admissions from persons accused of criminal offences.
However, one example in this court is Dawe J’s decision in Ames & Ames (2009) 42 Fam LR 95, where Her Honour found that a father, who had used a swab that he had obtained from a child for the purposes of obtaining a paternity test (as well as probably behaving in contravention of an Australian law), obtained the evidence improperly because the father had admitted that he had lied to the child about the reason for taking the swab. Also Her Honour, when exercising a discretion, under s 138 EA, refused to admit the report obtained from the laboratory who had analysed the swab, not only because of the threat of the integrity of the process, that normal testing procedures guarantee but also because of the improper way the father had obtained the biological material for the test.
On the issue of whether or not the father’s behaviour was improper, counsel for the mother makes the following submissions:
95.1.the father is a solicitor admitted to practice and an officer of the Supreme Court;
95.2.if he were a solicitor acting for a party, there is no doubt that he would be bound by principles of “honesty and fairness” in his dealings with the family consultant (see the statement of general principle appearing in the Legal Profession (Solicitor) Rule (2007) (Qld) at page 29).
95.3.even a litigant in person is required to refrain from conduct during the proceedings which is “dishonest”. Counsel for the wife submits and that an obvious criticism of secret recording is that the person conducting the recording modifies or falsifies their behaviour so as to present her or himself in a better light.
95.4.the father was dishonest with the report writer.
95.5.the other person in the conversation was a court officer conducting a court ordered function.
I accept these submissions.
The father asserts that s 11C FLA is a full answer to any allegation of impropriety on his part. For reasons already set out, I do not accept that to be so, given that I have read s 11C FLA to be subject to the evidentiary rules to which I have referred.
I find that the father has improperly obtained the evidence that he seeks to tender.
Conclusion
Given that I have found that the father has both improperly and illegally obtained the evidence that he seeks to tender, it follows consequently that there is a presumption that I should not admit that material unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
CONSIDERATION OF s138(3) EA
The Independent Children's Lawyer submits that the court should exercise a discretion under s 138 EA because the introduction of a transcript is likely to shorten the time taken in cross examination of the family consultant at trial and might place the court in a better position to deal with the allegations of bias made by the father against the family consultant.
The father submitted that the potential harm or prejudice to himself and the child in the proceedings greatly outweigh the impropriety and/or the illegality in making the recording.
Section 138(3) EA says that without limiting ss (1), a number of matters may be taken into account by the court when making an assessment of how the discretion should be exercised:
Section 138(3)(a) EA: the probative value of the evidence
The father submits and counsel for the mother concedes that the record of evidence is the best evidence available in this case as to precisely what was said between the father and the family consultant during the interview.
The father accepted the proposition that an experienced psychologist, as part of a report writing process, does not just listen to the words said or the way they are said but looks at the whole presentation of the person whom they are interviewing and makes an assessment on the basis of that presentation. Counsel for the mother also makes the point that there is no obligation upon a family consultant to record everything that a party says during an interview or to refer to it in a report.
The father made the point however that given there was no video camera in the room, we have got the voice inflections on the tape as at least the best evidence as to how statements were made during the interview.
The father has said that he has set out in his affidavit all the things that the family consultant got wrong.
In his most recent affidavit, the only thing he points to is the fact that he says that the family consultant in her report described him as being authoritarian when he said to the family consultant that he was authoritative. The reference to authoritarian is on page 19 of the transcript at line 42.
Counsel for the mother submitted that whether the word used by Ms O or the word used by the father was authoritative or authoritarian, didn’t actually matter because either could have described the narration of events that appears on page 19 of the transcript.
I am mindful of the fact that the first interview that the father had with the family consultant in this case lasted for two hours and thirty five minutes. The transcript of the interview is 74 pages long. A detailed cross examination of the 100 alleged errors in the report arising from a detailed study of the transcript of the interview would clearly take a long time. Having read the father’s affidavit sworn 21 March and filed 22 March 2011 (175 paragraphs) the report and the transcript together, I find that the probative value of allowing the transcript (and the CD) into evidence is not high.
The husband alleges widespread “verballing” and widespread rejection of family reports. Apart from asserting it, there is no evidence in the affidavits read by the father in this application to support either proposition.
Section 138(b) EA: the importance of the evidence in the proceeding
I accept that the father believes the recording to be important evidence in the proceedings and that there is no other way to test who is to be believed. I have already indicated that I do not consider the probative value of what is on the tape to be high. There is a large volume of evidence in this case to consider. The reports of the family consultant are one piece of evidence. What the father said during his interview with the family consultant forms a part of what the family consultant relied upon when forming her opinions. The family consultant also relied upon interviews with the mother and the child and made her own observations during all of the interviews of the demeanour of the various persons interviewed. The father’s recording of the interview is unlikely to be of great importance when the overall evidence in these proceedings is considered.
Section 138(3)(c) EA: The nature of the subject matter of the proceeding
The father submits that it is far more important to get the decision correct about the child than worry about the fact that allowing the father to do what he has done could open the flood gates and give the green light to any litigant to think that they could breach rule 1.19 FLR with impunity in parenting cases. I accept that the child’s best interests are the central subject matter of the proceedings.
However, the process of report writing in the Family Law Courts is not one which is similar to the police taking a record of interview from somebody who is suspected of a crime or the police interviewing a child who may be a material witness against a person is alleged to have has perpetrated a crime.
One of the reasons why police interviews are recorded on video is so that the taping of a digital audio recording cannot easily take place. In this matter the father asserts, and I have no reason to doubt, that he hasn’t tampered with the audio recording but I take judicial notice of the ease with which a digital track can be created and edited without there being any ability scientifically to detect the editing of such a track.
Section 138(3)(d) EA: the gravity of the impropriety
The judges of the Family Court have collectively decided that it is not permissible for a party to record a court event. I have already referred to the mischief that might be occasioned by allowing secret recordings to be made. I have also commented upon how it may well affect the value of interviews when all parties know that the interview is being recorded and may be replayed to a court. Rule 1.19 FLR is an important procedural rule. Contravening that rule is a matter of some seriousness, with the potential of jeopardising a successful process which has been developed over a long period of time. The gravity if the impropriety should also be seen in the context of the effect that this type of behaviour might have on the system as a whole.
The father submitted that the lack of accountability or redress in unrecorded interviews with public officials (family consultants) under FLA is an argument in favour of mitigation against the father’s impropriety. The father submits that the conduct of court appointed officials should be the subject of objective scrutiny and accountability. The father complains that the FLA provides him, as an interviewee in a family report, with no safeguards against “verballing” unlike as is provided in State legislation.
The one example of alleged “verballing” given by the father is the family consultant saying that he described himself as “authoritarian” rather than “authoritative” and I deal with this above.
I do not accept that the father’s impropriety is excused by his assertion that he is without protection if he is unable to secretly record the interview. In parenting proceedings that reach a stage where they have to be judicially determined for final parenting orders to be made, it is not uncommon (and always available) for a family consultant to be cross examined on the content of their report.
Section 138(3)(e) EA: whether the impropriety or contravention was deliberate or reckless
In this case there is no question the father deliberately set out to record the conversation.
Section 138(3)(f) EA: 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
The rights of a person recognised by the International Covenant on Civil and Political Rights includes, in Article 17:
“No one shall be subjected to arbitrary or unlawful interference with his privacy….”
The family consultant in this case had an expectation that her conversation with the father was not being recorded.
The family consultant expected that it was a private conversation as that term is used in the IPA.
Section 4 of the IPA defines a private conversation as meaning:
“private conversation means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.”
I find that the father has unlawfully interfered with the privacy of the family consultant and that the father’s impropriety and contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights.
Given however the family consultant’s duty as an officer of the court to report on her private conversation and the opinions that she formed during it, the breach of the family consultant’s personal privacy is not a weighty consideration.
Section 138(3)(g) EA: 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
In this case there is no suggestion by the mother or the Independent Children's Lawyer that they would seek to have the father dealt with for his admitted contravention of rule 1.19 FLR. The father is a lawyer. It is possible that the breach of a court rule by a lawyer, even when acting as a self represented litigant, might be drawn to the attention of that lawyer’s professional body.
Section 138(3)(h) EA: The difficulty (if any) of obtaining the evidence about impropriety or contravention of an Australian law
The father relied upon a statement made by Le Poer Trench J in Latham & Latham [2008] FamCA 877. In that case the husband, inter alia, recorded conversations between the mother and the children which “if correctly reported, would paint the mother as a seriously bad child abuser”. The recordings were of private conversations and were a prima facie contravention of s 5(1) of the NSW Listening Devices Act 1985 (NSW) (which Act has subsequently been repealed and replaced by the Surveillance Devices Act 2007 (NSW)). An exception in the Act is if the recording was “reasonably necessary for the protection of the lawful interests of the principle party” (in this case, the father). Given that there was a likelihood that the wife would deny the conversations between herself and the children, His Honour found that it was “necessary” in the sense of it being “appropriate but not essential” for the recording to have been made and accordingly His Honour did not find that it contravened an Australian law. Even if it had been a contravention, His Honour went on to indicate that he would have exercised his discretion under s 138 EA. He found that in the circumstances of this case, the probative value of the evidence was potentially high and potentially important and that the impropriety demonstrated by the husband in obtaining the evidence was not gross. Le Poer Trench J agreed in this case it would have been highly unlikely that the husband would have been able to obtain the recordings that he did obtain of the mother speaking in the way that she did to the children if he had attempted to obtain the mother’s permission first and had recorded her with her knowledge.
The father in the present case submits that it is highly unlikely that he would have been able to obtain the recording of his interview with the family consultant with her knowledge and permission. There are two difficulties with the father’s argument based upon his reading of Latham. The first is that the facts of the two cases are in no way analogous. There is a clear distinction between attempting to obtain consent to record a mother who is abusing her children and attempting to obtain consent to record an interview with a family consultant. Secondly, page 3 of the transcript of the recording of the father’s interview with family consultant does not give any indication one way or the other as to whether or not the family consultant would have in fact consented to the recording had she been asked, although, properly advised, she would not have done so given rule 1.19 FLR prohibits the recording.
In Tripp & Tripp [2010] FamCA 691 the mother, in breach of the Surveillance Devices Act 2007 (NSW) recorded interviews between an independent expert, a psychiatrist, appointed by the court pursuant to chapter 15 Family Law Rules and the children of the marriage. Similarly to this case, a litigant challenged some of the conclusions in the report and whether or not the report actually set out what occurred during the conference. The recording was made without the consent or knowledge of the expert and in breach of the Surveillance Devices Act 2007 (NSW). The proceedings before Fowler J had been originally scheduled for four days and had gone eight days at the time he was asked to rule as to whether or not the expert could listen to the illegal tapes. His Honour concluded that the provision of the recording and the transcript to the witness might considerably shorten the proceedings. It should be emphasised however that His Honour was not making a decision about the admissibility into evidence of the recordings but only if the expert could have them made available to her.
On 28 April 2011 I indicated that subject to further argument, if the tape was admitted into evidence then Ms O would get to have it before she was asked questions.
The father referred to a number of Canadian cases to support his submissions and primarily referred to Toope v Toope (2000) 8 RFL (5th) 446 (or CanLII reference CanLII 28375 (NL SCTD)). This case involved admitting into evidence the transcripts of the father’s conversations with his child, as recorded by the mother. The reason given for the admission of evidence is that the probity of the evidence in determining the best interests of the child outweighed procedural fairness, obtrusive use of court time, and repugnance of the illegal act.
The father also referred to Droit de la famille [2009] RDF 118 (or CanLII reference 2008 QCCS 5680) and the cases referred to within. In this case the father recorded conversations and messages involving himself, the mother and the child. The Judge referred to prior authority and ruled that the evidence was admissible in accordance with those authorities that say:
131.1.In matters dealing with the best interests of the child, the search for truth is paramount; and
131.2.It is preferable to have the best evidence of the conversation available, that being the recording, when oral evidence of the conversation would be heard in any case.
The father also referred to B(G) and B(D) (1998) WL1729827. I am unable to locate this judgment in international searches.
The father did not take me to the statutory provisions of the places where these cases were determined. Even if I accepted that the facts of those cases were being considered in a similar statutory framework to the FLA and EA, they are not determinative of any decision I have to make.
I do not accept the husband’s submission that the only means of establishing any controversy that exists between the father and the report writer as to what was said during the interview is to allow the admission of the secret recording.
It is open for the father as he has done in this case to file an affidavit setting out his version of conversations. It is not known at this stage whether or not the family consultant may well accept propositions put by the father about inaccuracies in her report. The provisions of additional information to family consultants, which information may have emerged during the trial, may lead them to modify an opinion that they had previously formed is not uncommon. The testing of family consultants in cross examination as to the factual basis upon which they have reached a certain opinion is not uncommon. The extent to which this will be allowed at the final stage of the hearing will depend upon future judgments about the importance of the alleged inconsistencies.
Other matters raised by the father
As indicated, the father refers to paragraphs 1 and 3 of the mother’s affidavit of 29 April 2011 in which the mother refers to a communication that she received from Ms O.
Whether or not the family consultant has acted appropriately in that regard might be a matter for further inquiry in the context of the father’s application to have her reports excluded, but it is not in my view relevant to the issue as to whether or not the father’s secret taping of the initial interview with the family consultant is admissible.
On discretionary issues, the father points to the absence of cross examination in interlocutory or interim proceedings which prevents testing of the evidence. He asserts that credibility is a major fact at this interlocutory stage and the only way of challenging the credibility of the family consultant’s opinions is to have in evidence the complete transcript of her interview with him.
The father relies upon Fagenblat & Feingold Partners Pty Limited [2001] VSC 454 and purported to read out a quote from Pagone J in the following terms:
“The evidence received on a single biased expert witness in such circumstances may carry through and, in fact, the impartiality of the court through its examination based upon that evidence where such expert is appointed by the court.”
I cannot find this quote in the text of this case, however the following quotation deals with the same subject matter:
“The possibility that a witness of fact or expert opinion may be biased does not infect the impartiality of the Court. The situation might be otherwise where the expert is appointed by the Court or where the role or function of the expert is more than that of a giver of evidence (whether that evidence be in the form of an opinion, as librarian of a body of knowledge, or otherwise). In such a case the role or function of the expert may perhaps come to be incorporated into that of the decision maker, and, where the expert's role or function is such that there is actual decision making by the expert, then I can see some scope for the application of the test of reasonable apprehension of bias to exclude the evidence. I can see no scope for that test, however, to exclude expert evidence that may assist the Court where the expert is called in adversarial proceedings by one party and where an opposing party is at liberty to test whether any bias corrupts the evidence.”
In the present circumstances the single expert (though court appointed) had the task of submitting evidence, opinions and recommendations to the Court. They will be the subject of cross-examination. The family consultant has no decision making role and the Court considers this evidence not in isolation but in combination with the full array or evidence presented in the proceedings (see Tryon & Clutterbuck & Attorney General of the Commonwealth).
It is unlikely that any credibility findings can be made, one way or the other, in the context of an interim hearing on the papers. It is likely, if it is necessary, that a credibility finding will be able to be made at the final hearing without the recording being in evidence.
Conclusion having considered s 138(3) EA
I find that the desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence. Given that the evidence was obtained improperly and/or in contravention of an Australian law, the recording and its transcript is not to be admitted.
Consideration of s 135(c) Evidence Act
A further objection taken to the tender of this evidence is that the probative value of the evidence is substantially outweighed by the danger that the admission of the evidence might cause or result in an undue waste of time.
The father made the submission that the introduction of the evidence would shorten the proceedings and avoid costs involved in exploring the witness’ memory. I do not accept that that is the likely effect of allowing the recording as evidence.
I have already referred to how lengthy the process may become if the recording is allowed into evidence, particularly if the father seeks to use it to demonstrate the family consultant made a large number of mistakes (over 100). The father seems to wish to extensively analyse the transcript. The father asserts that there were at least 100 areas where he would wish to challenge either bias on behalf of the report writer (76) or the truthfulness of her reporting (28).
An example of how this inquiry could turn into a significant undue waste of time is the emphasis that the father put on the fact that the family consultant mistakenly said that he used the word ‘authoritarian’ when he used the word ‘authoritative’. As I have said, a full reading of the context in which that discussion took place leads to a conclusion that very little turns on that distinction.
Accordingly I refuse to admit the evidence because its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
Conclusion
Although the child’s best interests are not my paramount concern when making this ruling, it is certainly an important matter to have in mind when doing so. The matters I will need to consider when making parenting orders are set out in ss60CC(2),(3),(4) and (4A) FLA and I am also mindful of the volume of material relied upon by the parties.
The tape tendered by the father of his interview with Ms O was obtained both improperly and in contravention of an Australian law.
Section 11C FLA should not be read in a way that excludes the operation of s 56(2); s 138 and s 135 EA.
The desirability of admitting the evidence does not outweigh the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained.
The tape and the transcript are not to be admitted in the proceedings.
If I am wrong about the conclusion I have reached relying upon s 138 EA, then in the alternative, pursuant to s135(c) EA, I will refuse to admit the tape and transcript because I find its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time.
Accordingly, I will dismiss the father’s application to adduce in evidence in these proceedings, the recording on the SD card held on court file pursuant to order 8 of 21 March 2011 (and any CD copy of that SD card) and any transcript of the SD card.
To avoid future confusion it would be useful if s11C FLA was amended so that it commenced with the words such as “Subject to this Act and the provisions of the Evidence Act 1995 that do apply in child related proceedings”.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 24 May 2011.
Associate:
Date: 24 May 2011
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