Huffman & Gorman
[2014] FamCA 150
•17 March 2014
FAMILY COURT OF AUSTRALIA
| HUFFMAN & GORMAN | [2014] FamCA 150 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Whether recorded conversations, transcripts of recordings and photographs should be forwarded to the Single Expert for consideration – Recordings prima facie illegally obtained unless an exclusionary provision applies – Admissibility of recordings yet to be determined – Application dismissed |
| Evidence Act 1995 (Cth) s 138 Listening Devices Act 1984 (NSW) s 5(3)(b) Surveillance Devices Act 2007 (NSW) ss 7(3)(b), 11(2) |
Latham & Latham [2008] FamCA 877
R v Le [2004] NSWCCA 82
Sepulveda v R [2006] NSWCCA 379
Tripp & Tripp [2010] FamCA 691
| APPLICANT: | Mr Huffman |
| RESPONDENT: | Ms Gorman |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
| FILE NUMBER: | PAC | 3882 | of | 2011 |
| DATE DELIVERED: | 17 March 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 7 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Thomas |
| SOLICITOR FOR THE APPLICANT: | Caldwell Martin Cox |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | Redmond Hale Simpson Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta |
Orders
That the Applicant father and his servants or agents be restrained from causing photographs, computer USB thumb drives and transcripts of the thumb drives being provided to Dr K, Child and Family Psychiatrist, the Single Expert in these proceedings.
That otherwise the father’s Amended Application in a Case filed 23 December 2013 be dismissed.
That otherwise the mother’s Response to an Application in a Case filed 23 December 2013 be dismissed.
That the mother’s costs of and incidental to the present discrete application be reserved.
The mother file and serve any submissions in support of any application for costs within fourteen (14) days.
The father file and serve any submissions in response within a further fourteen (14) days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Huffman & Gorman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3882 of 2011
| Mr Huffman |
Applicant
And
| Ms Gorman |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The Proceedings
The primary proceedings before the Court are parenting proceedings in relation to the three children of the Applicant father and the Respondent mother.
Those children are presently aged seven, five and three.
Proceedings were commenced by the Applicant father in 2011.
On 5 October 2011 interim Orders as to parenting were made by consent. Those Orders relevantly provided that the father and mother have equal shared parental responsibility for the children, that the children live with the mother and that the children spend defined time with the father.
On 18 November 2011 further interim Orders were made by consent in relation to the Christmas 2011 period.
On 22 August 2012 an order was made for an Independent Children’s Lawyer to be appointed to represent the subject children.
On 16 April 2013 Orders were made appointing Dr K, Child and Family Psychiatrist, as the Single Expert in the proceedings. It is common ground between the parties that that report has been substantially completed and awaits the outcome of the present discrete application.
The proceedings were then adjourned generally to await the preparation and release of the Single Expert report.
The present discrete application was commenced by the Applicant father filing an Application in a Case on 9 December 2013. That application relevantly sought an order in the following terms:
That Dr [K], Child and Family Psychiatrist, the Single Expert Witness appointed by order of this court on 16 April, 2013 be given the photographs, computer USB thumb drive and transcripts of the thumb drive referred to in the Affidavit of the Applicant [father] sworn 29 November, 2013 and filed 2 December, 2013, for his consideration prior to release of his Report.
On 23 December 2013 the Applicant father filed an Amended Application in a Case seeking an additional order:
That the final hearing of the parties competing Parenting and Property Applications the expedited.
The Respondent mother filed a Response to the Application in a Case on 23 December 2013 seeking orders that, in summary, provided:
a)Pending further order, the father be restrained from causing recordings, tapes, computer USB thumb drives and transcripts of the thumb drive being provided to Dr K, Child and Family Psychiatrist, the Single Expert in these proceedings;
b)That the father provide to his solicitors the original primary recordings together with the computer USB thumb drive for the purpose of the mother, her legal advisers and such other experts as the mother may appoint having access to same so as to authenticate and/or transcribe the contents of such items; and
c)That the father pay the costs associated with the mother’s authentication and transcription of the said original primary recordings and the computer USB thumb drive.
Both parties sought the other party pay their costs of and incidental to this application.
The Father’s Evidence
The Single Expert conducted interviews for the preparation of the Single Expert report on 9 and 23 August 2013.
During the period from late 2006 until late 2010 the father took numerous photographs of himself and his clothing following alleged incidents of conflict and violence with the mother. These photographs were stored on a disposable camera that the father kept in a work locker or hidden in the garage at the family home and later with his parents. The photographs were taken without the knowledge of the mother. Other photographs were taken by the father on a borrowed mobile telephone.
The father says that he took the alleged photographs as he believed the mother might take his life and he wanted there to be evidence of the mother’s alleged assaults on him and her violent behaviour.
None of the photographs were printed or reproduced by the father until after the commencement of the present proceedings in 2011.
From late 2006 until 2008 inclusive the father used a small portable dictaphone to record what he alleges to be numerous incidents of conflict and violence and arguments between the mother and himself. It is common ground that these recordings were taken without the consent of the mother.
In 2009 the mother found and retained the dictaphone. The father at that time handed over to the mother four or five tapes that he had at the family home. He alleges that there were approximately another 21 tapes of recordings of alleged incidents of conflict and violence and arguments between the mother and him.
The father asserts that he made the recordings as he believed that the mother might take his life and he wanted there to be evidence of the mother’s assaults on him, threats to the eldest child of the marriage and himself and the mother’s violent behaviour.
It is to be inferred that the father sought to protect his credibility at some later point in time if it was asserted that his allegations were false.
The father facilitated the recordings by placing the dictaphone inside his belt buckle or waistband of his pants and pulled his shirt over to cover it.
Subsequent to the commencement of these proceedings and in early September 2013, he selected six recordings of events from the tapes and transferred them onto a computer USB thumb drive. He provided that thumb drive to his solicitor and gave instructions for there to be a transcript of the contents of the thumb drive prepared.
The father seeks to have the photographs taken by him, the thumb drives and transcripts provided to the Single Expert.
The Mother’s Evidence
The mother says that she first became aware that the father had taped conversations between them in about mid-2007.
She says that the tapes that she found at that time were “bits of conversations between [the father] and myself when we had been arguing”. She says, to the best of her recollection, the taped conversations did not reflect the whole of the conversation between them, only parts.
She says that she confronted the father with the 5 tapes she had found and the father represented to her that he would not make further tape recordings. The mother was not aware that the father had continued to tape conversations between them. She gave no consent to the father doing so.
The mother says that when she first became aware that the father was requesting that recordings and their transcripts be put before the Single Expert she searched for the dictaphone and the original tapes that she had in her possession. She found that three tapes that she could find had been wiped. She could not locate the other two tapes.
The mother alleges that following transcription of the tapes in the father’s possession that the recordings represent random pieces of conversation and not whole conversations.
There is no recording of what she asserts to have been the father’s threatening words and conduct towards her that always precipitated their arguments.
Context
The parties commenced cohabitation in about 1999 and were married in October 2005.
The party separated in 2009 and were divorced in March 2012.
The three children of the marriage were born in 2006, 2008 and 2010. The youngest child was conceived while the parties were in fact separated.
It is common ground that at the times of the impugned recordings by the father the only child of the marriage was very young. The second child of the marriage was at most only a few months old at the time of the last recordings.
After the initial tape recordings were discovered by the mother in mid-2007 she was unaware as to any further tape recordings by the father.
It appears that the marital cohabitation continued until separation without further incident, except for allegations by the father of injuries received by him during arguments with the mother both before and after separation. The parties also continued a relationship of sorts after separation.
The issue as to whether the alleged injuries were caused as depicted by the father and the relevance of such allegations will be a matter for judicial determination at the trial at which time no doubt the mother will be confronted with the photographs and any other evidence supporting the father’s allegations.
The father’s reasons for the initial recordings that were discovered by the mother and the later recordings are set out above. They were undertaken in the context of an intact relationship that then continued for some time until separation and then it seems even thereafter.
It is common ground that there are in excess of 1000 pages of transcript and there are significant issues between the parties as to the timing of the various recordings and significantly the integrity of same.
The provision of the recordings and transcripts to the Single Expert, it is agreed, would further delay the finalisation of the Single Expert report and involve the parties in significant additional expense in terms of the Single Expert considering the voluminous transcript and listening to the actual recordings.
In circumstances where there is a significant dispute between the parties as to the timing and integrity of the recordings, the Single Expert will be placed in a difficult position, as he is unable to make determinations of fact.
It will be a matter for the Court at trial to determine the admissibility of and the integrity of the recordings, if they are sought to be relied on by the father.
Discussion
It is common ground between the parties that the recording of the private conversations between the parties by the father is contrary to the provisions of the Listening Devices Act 1984 (NSW) (“the Listening Devices Act”) that was in force until 1 August 2008 and thereafter contrary to the provisions of the Surveillance Devices Act 2007 (NSW) (“the Surveillance Devices Act”) that then was in force from that date, thus rendering the recordings illegal and the publishing of those recordings illegal.
It is important to be mindful of the statutory scheme introduced by both Acts; a scheme to protect privacy and to facilitate in an ordered way an integrated scheme for controlling infringements of privacy. The scheme is reinforced by prescribed criminal penalties for breaches.
Section 5(3)(b) of the Listening Devices Act provided that the exclusionary provisions of the legislation did not apply if:
a principal party to the conversation consents to the listening device being so used and:
(i) the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
The terms of the exclusionary provisions of the Surveillance Devices Act are in similar terms (see subsections 7(3)(b) and 11(2)).
As was said in Sepulveda v R [2006] NSWCCA 379:
114 However, it is necessary to view the broad words in s.5(3)(b)(i) LD Act, against the background of the statute generally. The LD Act commences with a prohibition upon the use of a listening device to record or listen to a private conversation, whether by a party to that conversation or otherwise: s.5(1). The primary exception to this statutory prohibition involves the use of a listening device pursuant to a warrant under Part 4 of the LD Act, or pursuant to an authority under a law of the Commonwealth or another circumstance specified in s.5(2) of the Act.
115 A further layer of statutory exceptions are to be found in s.5(3), with this class applicable only where a principal party to the conversation consents to the recording. It is necessary to bear in mind that s.5(3)(b)(i) constitutes an exception to the general statutory prohibition on use of a listening device, where the primary exception permits recording of conversations under warrant. There is a strong argument that the words of s.5(3)(b)(i) ought be closely confined to avoid undermining the primary purpose of the LD Act. An undue willingness to include a multitude of differing circumstances within this statutory exception may serve to encourage persons to make a covert recording of a conversation rather than (in the present context), comply with the primary object of the Act by bringing the matter to the attention of relevant law enforcement authorities so that application may be made for a warrant to lawfully record a conversation.
…
142 Section 5(3)(b)(i) LD Act should not be interpreted in such a way as to render otiose the primary purpose of the Act, which is to protect privacy by prohibiting covert recording of a conversation other than (usually) by way of a warrant under the Act. Section 5(3)(b(i) (sic) operates as an exception. … It is important that a construction not be attached to this statutory exception which would serve to undermine, in a significant respect, a primary purpose of the LD Act.
The father contends that his actions fall within these exclusionary provisions, thus rendering his actions lawful.
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).
As observed above, the father asserts that he made the recordings as he believed that the mother might take his life and he wanted there to be evidence of the mother’s assaults upon him, threats to the eldest child of the marriage and himself and the mother’s violent behaviour. In submissions the purpose of the recordings was described by his counsel as “corroboration”. It is to be inferred that the father sought to protect his credibility at some later point in time if it was asserted that his allegations were false.
The father, through his counsel, submits that his actions were designed to protect the children’s interests and his own. Yet, at the time of the impugned recordings there was one child and maybe another. There was an intact relationship between the mother and the father and no proceedings were contemplated or pending.
The present question for the determination is not the ultimate admissibility of the tapes and their transcripts and the photographs but whether they should be made available to the Single Expert.
The Single Expert is not the arbiter of fact. That is the function of the Court.
It may be that issues arise at the trial that see the tapes, or portions of them, sought to be admitted into evidence or put to the mother in cross examination. At that time a determination as to admissibility, either under the relevant statute or otherwise, and if admitted into evidence the weight to be attached, will be argued.
It is inappropriate to put before the Single Expert material:
a)That is prima facie illegally obtained;
b)Where its admissibility under the exclusionary provisions of the relevant statutes is yet to be determined;
c)Where its admissibility otherwise under section 138 of the Evidence Act 1995 (Cth), particularly the questions of probative value and importance in the proceedings, is yet to be argued: see Latham & Latham [2008] FamCA 877 (where recordings took place proximate to the proceedings) and Tripp & Tripp [2010] FamCA 691 (where the recording was of an interview with the Single Expert);
d)Where the integrity of the material is seriously put in question by the mother in any event; and
e)Where the question of what weight could be afforded to such evidence in any event, particularly as to temporal relevance, is yet to be determined.
The Single Expert will most likely be giving oral evidence and any other factual matters arising during the trial that were not before him in preparing the report can be put to him at that time if relevant to the opinions expressed by him.
As to the photographs, they are a matter for evidence during trial. Their admissibility is yet to be tested as is the question of such weight that should be afforded to them. The photographs, if admissible, can be put to the mother in cross examination. What arises from that course of evidence can later be put to the Single Expert if relevant to his opinion.
Otherwise, consideration as to the expedition of the proceedings is appropriate after release of the Single Expert report.
In the circumstances, the father’s Amended Application in a Case should be dismissed and the father should be restrained from providing the impugned material to the Single Expert.
Directions will be made in respect of the filing of submissions in support of any application for costs arising from the dismissal of the father’s application, and in response.
The orders to be made are as set out at the forefront of these reasons for Judgment.
I certify that the preceding sixty-one (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 March 2014.
Legal Associate:
Date: 17 March 2014
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