Hazan & Elias

In *Hazan & Elias*, heard by Watts J, the husband sought to adduce into evidence a secret recording he made of an interview with a family consultant, along with its transcript. The wife opposed the admission of this evidence.

The central legal issues before the court were whether the secret recording and its transcript were admissible, particularly in light of section 11C of the *Family Law Act 1975* (Cth) and section 138 of the *Evidence Act 1995* (Cth). The court was required to determine if section 11C of the *Family Law Act* displaced the operation of section 138 of the *Evidence Act*, and whether Rule 1.19 of the *Family Law Rules 2004* constituted an ‘Australian law’ for the purposes of section 138. The court also considered its discretion under section 138(3) of the *Evidence Act* regarding evidence obtained improperly or in breach of an Australian law.

Watts J found that the recording and its transcript were inadmissible. The court reasoned that the recording was obtained in breach of an Australian law, specifically Rule 1.19 of the *Family Law Rules 2004*, which governs the conduct of family consultants. Furthermore, the court determined that section 11C of the *Family Law Act* did not oust the application of section 138 of the *Evidence Act*. Applying the discretion under section 138(3), the court concluded that the prejudicial effect of admitting the evidence outweighed its probative value.

Consequently, the court dismissed the father's application to adduce the recording and its transcript into evidence.