Masri & Masri
[2017] FamCA 539
•27 July 2017
FAMILY COURT OF AUSTRALIA
| MASRI & MASRI | [2017] FamCA 539 |
| FAMILY LAW – EVIDENCE – Voir Dire – Where each parent seeks to have recorded conversations admitted into evidence – Where the recordings were illegally obtained – Where each party seeks to use the recording to corroborate their version of events – Where the recordings are not essential to proving any fact in issue – Where the desirability of the admitting the evidence does not outweigh the undesirability of admitting evidence that has been illegally obtained. |
Evidence Act1995 (Cth) s 138
| Family Law Act 1975 (Cth) s 69ZT Surveillance Devices Act 2007 (NSW) ss 4, 7 |
| Gorman & Huffman and Anor [2016] Fam CAFC 174 |
| APPLICANT: | Ms Masri |
| RESPONDENT: | Mr Masri |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 5617 | of | 2014 |
| DATE DELIVERED: | 27 July 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17 July 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Judge |
| SOLICITOR FOR THE APPLICANT: | AJ & Associates |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Browns The Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The mother’s application to admit evidence made on 17 July 2017 is dismissed. The evidence is not admitted.
The father’s application to admit evidence made on 18 July 2017 is dismissed. The evidence is not admitted.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masri & Masri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5617 of 2014
| Ms Masri |
Applicant
And
| Mr Masri |
Respondent
REASONS FOR JUDGMENT
introduction
In the course of parenting proceedings each of the parents sought to rely upon a recording of a conversation between the parties which was considered in a voir dire at the commencement of each respective case. In each case I refused to admit the evidence in question and indicated I would publish my reasons for doing so at a later date. These are those reasons.
Background
The parents of two children aged six and three are engaged in a parenting dispute regarding the children’s future care.
The parents separated in November 2014 following a four and half year marriage. The elder child, a girl was three and half and the younger child a boy was almost one when the parties separated.
A short time prior to separation the mother contends that there was an incident in which the father smacked the three year old child causing her to cry, threatened the child with “another one” and repeatedly told the child to “shut up” while waving a clenched fist in the child’s face. The father’s version of the incident is that the mother had smacked the child and requested the father’s help in managing the situation. The father agrees that he did say to the child “do you want another one” and raised his hand and told the child to “shut up” but did not smack her. The mother sought to adduce evidence of this incident by playing a video recording which she had made with her mobile phone. This was the subject of the voir dire in the mother’s case.
After the parents separated, the children initially lived with their father and spent time with their mother. This arrangement came to an end in May 2015 when the father was involved in a serious motor bike accident and was hospitalised for about three months. Following the accident the children lived with their mother and spent time with their father in accordance with interim orders made in July 2015.
Shortly before May 2015 when the father was significantly injured and the children were living with him, there was an incident on an occasion when the mother returned the children to the father’s home. The parties were arguing in the presence of the children about the father having covered up the mother’s face in a family portrait and when the mother went to remove the photograph she alleges that the father assaulted her by grabbing her wrist and thumb and twisting it. The father denies grabbing the mother’s wrist or thumb and says that the mother pushed him and scratched him.
The parties then went outside and in the presence of the children continued their argument at the front of the home causing the children to become distressed and upset. Police officers arrived and the father was directed by police to release the younger child who was in the father’s arms. The father was removed from the scene in handcuffs and charged with assaulting the mother and two counts of resisting arrest. He was ultimately found not guilty of all charges.
In the course of this incident, after the interaction between the parents in the house, the father began making an audio recording on his mobile phone. He sought to adduce evidence of this recording in the proceedings. This was the subject of the voir dire in the father’s case.
Although there are many disputed facts relating to a number of incidents in each parent’s respective affidavit the proposals of each parent suggests that the parenting dispute is in reality of quite limited compass. Each parent proposes that both parents equally share parental responsibility for the children and that the children live primarily with one parent and spend substantial and significant time with the other. Neither parent contends that the other poses an unacceptable risk of harm to the children.
The Voir Dire in the mother’s case
For the purposes of the first voir dire the mother relied upon two paragraphs in her trial affidavit and evidence adduced orally on the morning of the first day of trial. The father also gave oral evidence in this voir dire.
According to the mother’s oral evidence, during the day on 11 November 2014 prior to making the recording she told the father that she “will be showing your family what you are doing in this household and what you are up to”. She says that she made the recording of the father smacking and threatening the child on her mobile phone which she held in her hand, resting it upright on an island bench in the kitchen. She says that the father and child were five metres away in the lounge room. The mother said that after the incident was over and the child was in bed, she asked the father whether he understood how much he scared the child and offered to show him the video recording but he declined saying he was fine.
Under cross-examination the mother said that the father was “well aware that I was going to be recording him”.
In oral evidence on the voir dire, the father said that the mother was feeding the child in the lounge room and had had enough and walked into the kitchen. At that stage he took over feeding the child in the lounge room. He said he was not aware that he was being filmed (sic) and did not give consent to being filmed. He says that he first became aware that the mother had made the recording when she raised it in an affidavit filed in these proceedings. He denied that the mother told him she would record him so that her family and his family would know the truth. He also denied that she took the phone out and held it up openly in his presence or that she had the conversation with him after the incident in which she offered to show him the recording.
The voir dire in the mother’s case took place at the commencement of the proceedings and I am unable at this stage to make credit findings in relation to each party’s evidence. However, I am satisfied that the father did not give express consent to the mother using her mobile phone to record the incident. I also find that the father did not impliedly give consent to the recording as the mother’s evidence even if accepted is to the effect only that she told the father that at some unspecified time she was “going to be recording him”. Further, even if the mother did openly hold her mobile phone in her hand as she asserts, she gives no evidence from which it could be inferred that the father did see her when recording the conversation and that he did not object to this occurring.
I also find that according to both parties’ evidence, the only parties to the recorded conversation were the father and the child and the principal party to the conversation was the father. By the time the mother began the recording she was in the kitchen from where she was recording the incident and conversation between the father and the child, but was not a party to that recorded conversation herself.
The Law and Discussion
Although section 69ZT of the Family Law Act 1975 (Cth) (“the Family Law Act”) excludes certain parts of Chapter 3 the Evidence Act in child related proceedings Part 3.11 of Chapter 3 which deals with discretionary and mandatory exclusions is not excluded by the operation of section 69ZT.
The question of admissibility is determined by the relevant provisions in the Evidence Act 1995 (Cth)(“the Evidence Act”) and in particular section 138 of that Act.
Section 138 of the Evidence Act provides:
(1)Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law,
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The Surveillance Devices Act 2007 (NSW) (“Surveillance Devices Act”) governs the use of devices to record private conversations.
The Surveillance Devices Act section 7 subsection (1) states:
(1)A person must not knowingly install, use or cause to be used or maintain a listening device:
(a)to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b)to record a private conversation to which the person is a party.
Section 7 subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if:
(a)all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i)is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii)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
It is the father’s case that the recorded conversation is evidence that was obtained in contravention of Australian law, being the Surveillance Devices Act. It is submitted on his behalf that the father did not consent to the mother using her mobile phone to record his private conversation and that the mother (who he seems to accept was a principal party to the conversation) did not record the conversation for the purpose of protecting her lawful interests.
It was submitted on behalf of the mother that the warning and notice given by her to the father that she would record him and the open nature of the recording would support a finding that the father actually or impliedly consented to the recording. Alternatively, it is submitted on behalf of the mother that she made the recording to protect her own interests and the interests of her child.
As previously noted I am not satisfied that the father gave express consent to the mother using her phone to record the conversation nor can his consent be implied in the circumstances of this case.
For the reasons given, I am also not satisfied that the mother was a party to the recorded conversation.
Even if the mother could be said to be a party on the basis that the recording also captured part of the conversation she had with the father, her purpose in recording it, on her own evidence was to enlighten the father’s family and her own family about the father’s behaviour. The purpose for which the mother wished to inform the party’s families about the father’s conduct is unknown.
In these circumstances I am satisfied that the evidence in question was obtained by the mother in contravention of an Australian law.
According to Section 138 (1)(c) of the Evidence Act, such evidence is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence that has been illegally obtained.
Section 138 of the Evidence Act goes onto to provide:
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)the probative value of the evidence; and
(b)the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
In my view while the evidence in question may have significant probative value as to the fact in issue this fact is issue is not of great importance in the proceedings, having regard to the competing parenting proposals. Although the mother contends that the evidence captured in the video recording is relevant to the father’s “anger management issues” and parenting of the children, her concerns about these matters cannot be of great significance when she proposes that the parties equally share parental responsibility for the children and that the children spend substantial and significant time with their father. She also does not seek an order restraining physical discipline in her final parenting proposal. Further, the father does not dispute that he had his hand raised to the child, told her to “shut up” and said “do you want another one” (after the mother had smacked the child) prior to the commencement of the recording. In other words the difference between the two versions of events is very limited.
The application to admit the unlawfully obtained evidence arises in parenting proceedings under the Family Law Act being proceedings in which the best interests of the child are paramount. In such proceedings it is not uncommon for parties to make many such allegations arising from incidents which occurred when the relationship in question was intact. In my view in these circumstances the court should approach with great caution the admission of unlawfully obtained evidence to support a party’s version of events.
The contravention in my view is not particularly grave in the sense that it involves a single recording of a short conversation by a hand held telephone. There is no suggestion of any sophistication in making the recording such as the covert installation of a listening device to record conversations on an ongoing basis. However, the contravention was deliberate in the sense that the mother consciously and intentionally recorded the father’s conduct for her own purposes prior to separation.
I am of the view that while it is difficult to obtain actual evidence of conversations and conduct that occurs in the privacy of a family home video recording is not essential to prove the fact in issue. It is not difficult to simply set out a version of the conversation and conduct in question and have the court determine the matter in the usual way. In these circumstances I approach with great caution the suggestion that the difficulty of obtaining evidence of an event of this nature on the basis that it occurred in the privacy of a home should carry great weight in permitting the admission of illegally obtained evidence.
In summary, the court is required to balance the seriousness of the mother’s conduct in recording the conversation in question against the potential for harm to the children if the evidence is not admitted. In my view there is little potential for harm if the evidence in question is not admitted having regard to the proposals of the parties. The parents may each rely on their version of the event in question contained in their respective affidavit if the recording is not admitted. In circumstances where neither parent raises the question of unacceptable risk of harm posed by the other parent and the mother proposes that the father spend substantial and significant time with the children, I am not satisfied that the desirability of the admitting the evidence outweighs the undesirability of admitting evidence that has been illegally obtained.
Voir dire in father’s case
The father seeks to admit evidence of a conversation that he recorded on 19 April 2015 after the parties had an argument following the return of the children to the father with whom they were then living.
It is common ground between the parents that there was a verbal argument on that date which escalated to some sort of physical altercation in which each alleges that they assaulted the other. It is also not in dispute that after the parties made these allegations against one another each of them, the children and the maternal grandmother who was also present went outside and the incident continued on the driveway outside the home.
In oral evidence on the voir dire the father said he made an audio recording of the incident by means of his mobile phone. He says that he began the recording when he was in the living room and as he carried the younger child outside the home he put the phone in his pocket which continued to record words spoken during the event. According to the father the recorded conversation with the mother and maternal grandmother occurred on the driveway. He says that he was walking towards the maternal grandmother and called for his daughter to come to him but the mother was jumping in front of him telling him to stay away.
The father says he did not say anything about the recording device but claims that the mother said “I am glad this is being recorded”. The father says that the volume of his speech was “not loud at all”. According to the father the conversation went on for about five to six minutes before police arrived and that a neighbour at one point came onto the scene who he understood had been called to the home by the maternal grandmother. The father said that the neighbour’s voice was “in a bit of” the recording.
According to the father his purpose in making the recording was to defend himself against false accusations that had been made against him of assaulting the mother. The father agreed that he was subsequently charged as a result of the incident with assaulting his wife and two counts of resisting arrest.
The father did not produce a transcript of the conversation though it was clear from the cross-examination that a purported transcript had been provided by the father’s solicitor to the mother’s legal representative shortly before the voir dire commenced. The mother disputes that this is an accurate transcript of the recorded conversation.
Under cross-examination it was put to the father that the mother did not say “I’m glad this is being recorded” or any similar words. The father agreed that the mother’s solicitor had been served with a 30 page transcript of 80 minutes of an audio recording. The father explained that he sent the recording to an unnamed person who prepared a transcript which refers to words being spoken by people designated as “B” and “C”. The father was not able to shed light upon who the relevant conversation was attributed to. The father said that he had compared the recording to the transcript and that “the majority” of the transcript was accurate. The father was unsure under cross-examination whether the words “I’m glad this is being recorded” were attributed to any of the parties to the conversation in the transcript though his solicitor conceded that these words were not on the transcript.
The father confirmed that he did not tell anyone outside the home that he was recording the conversation and that he was in a position to turn the recording on and off as he wanted though denied that he had done so.
The wife did not give evidence on the voir dire.
The Law & Discussion
It is submitted by the father that although the Surveillance Devices Act is the applicable statute, the recording of the conversation in question is not rendered unlawful by section 7 as the conversation recorded by the father is not “a private conversation”.
Section 4 of the Surveillance Devices Act provides:
“Private conversation” means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b)by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
It is submitted on behalf of the father that the parties to the conversation ought reasonably to expect that it might be overheard by someone else as it occurred outside the home in raised voices. Although the conversation did occur in the driveway of the home there is no evidence that voices were raised and the father says he was “not loud at all”. It was suggested that the conversation was sufficiently loud for a neighbour to have attended the home, but the father’s evidence was the neighbour was invited to the home by the maternal grandmother rather than as a result of overhearing the conversation. Further, according to the father’s evidence, the recording of the conversation commenced inside the home. In these circumstances notwithstanding that the conversation continued outside, in my view it can be inferred that it was not a conversation that the parties ought reasonably to expect might be overheard by someone else.
It was further submitted on behalf of the father that his conduct fell within the exception under section 7(3) of the Surveillance Devices Act as all of the principal parties consented to the phone being used to record the conversation. I am not satisfied that the mother did consent to the recording being made as the only evidence in support of that finding is the father’s evidence that she said “I’m glad this is being recorded”. However, the lengthy transcript of the conversation (which was not tendered on the voir dire) does not indicate that these words were spoken by anyone in the course of the conversation.
Alternatively, it is submitted on behalf of the father that as a principal party to the conversation he consented to it being recorded and the recording was reasonably necessary for the protection of his lawful interests of defending himself against false accusations of an offence. So far as a false allegation of assaulting the mother is concerned it is noted the phone was not activated to record the incident until after that alleged offence was said to have been committed. It cannot follow the father sought to protect himself against a false allegation by recording an event that was already complete.
The father was subsequently also charged with two counts of resisting arrest though he was not found guilty of those offences to the criminal standard. Although he deposes to relying upon the recorded conversation in the criminal proceedings and says that the recording played a part in his acquittal, there is no evidence in relation to the Magistrate’s findings or the use of this recording in coming to that decision. Further, at the time the father began recording the conversation with his phone he could not have been protecting his lawful interest against a false accusation by police that he unlawfully resisted being arrested. There is no evidence to suggest that the reason he was not convicted at the criminal standard was because his arrest was based upon a false accusation made by police.
Having regard to the foregoing, I am satisfied that the evidence in question was obtained in contravention of an Australian law.
In taking into account the matters set out in section 138 (3) of the Evidence Act I am of the view that the evidence in question has little importance in the proceedings.
As noted earlier, neither parent contends that the other parent poses an unacceptable risk of harm to the children. Further, despite clear directions on many occasions throughout the final hearing that I would not be engaging in a close examination of the numerous incidents alleged by each party against the other, both seemed intent on establishing that his or her version of the incident in question be accepted by the court. So far as the particular incident on 19 April 2015 is concerned, the father clearly sought that his actions be vindicated and his principal concern appeared to be that he was falsely accused by the mother of assaulting her and possibly falsely accused by the police of resisting police on that date.
The father contended that the evidence on this recording proves the propensity of the mother to make untrue abuse allegations against him which are relevant to the best interests of the children. In my view it may not be possible to determine to the applicable standard that the mother did make a false accusation of assaulting her even if the recording is admitted. Further, there are in any event a number of other undisputed examples of the mother making allegations of abuse against him which were later abandoned which will be taken into account when considering this contention.
This court of course generally approaches rehearing matters that have been determined by other courts with caution and can even adopt the finding of another court. However, the court may sometimes have no choice but to reconsider the same incident for different purposes and at a different standard of proof where the issue is relevant to the question of the children’s best interest.
In these proceedings the matters of relevance to the best interests of the children arising from this incident are not in dispute. The parties do not dispute that on the day in question a verbal argument which escalated to physical interaction between the parties erupted in the presence of the children when the mother was returning them to the father following her time with them. There is no dispute that this occurred despite an order that the maternal grandmother be present at such changeover presumably to protect the children from conflict. It is also not in dispute that the argument continued outside the home and that police were called and that during the father’s interaction with police he was holding the younger child in his arms and both children became distressed by the situation. It is also not in dispute that the father was arrested in the presence of the children and removed in handcuffs from outside his home.
The probative value of the evidence in question in my view is also not high. Although the transcript was not tendered on the voir dire, according to the father, only the “majority” of it is accurate and there is no clear identification of the person who is said to have spoken particular words. The mother disputes the accuracy of the transcript. Even on the father’s version, the transcript (and presumably the recording) does not contain some of the words which he contends were spoken by the mother during the incident.
In these circumstances the court may be required to listen to eighty minutes of recording on more than one occasion to determine the words that were spoken.
The contravention was deliberate. The father made an intentional decision to make the recording to corroborate his version of the events as it unfolded to protect himself against false claims made by the mother. However, in my view the contravention was not particularly grave as it related to a single conversation without any particular sophisticated planning or execution.
It is difficult for parties to obtain evidence of interactions behind closed doors but the remarks I made earlier when considering the mother’s application to admit unlawfully recorded evidence are equally apt in this case.
The father relies upon the Full Court’s approval in Gorman & Huffman and Anor[1] of my decision to admit covertly recorded conversations in parenting proceedings where it had been noted that it is notoriously difficult to obtain evidence of family violence. However, family violence of a very serious type in that matter was “pivotal to the determination of where the best interest of the children lie”. In these proceedings although it is a significant issue that the children have been exposed to high levels of conflict between their parents, the conflict is evident on the uncontested evidence. The evidence in question in this voir dire seems to be more related to the question of whether the father should have been charged with resisting arrest, charges of which he was subsequently acquitted. As the recording did not commence until after the incident in which he is alleged to have assaulted the mother, it cannot go to that issue.
[1] [2016] Fam CAFC 174.
The test set out in section 138 of the Evidence Act recognises that it is undesirable for evidence which has been unlawfully obtained to be admitted in proceedings in recognition of the clear public policy that parties should not resort to illegality for the purposes of obtaining evidence. Therefore the test is expressed in terms that such evidence should not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting such illegally obtained evidence.
Taking into account the foregoing matters and attaching particular weight to the lack of importance of the evidence in the proceedings having regard to the party’s proposals, the nature of family law proceedings, the questionable probative value of the evidence and the other matters referred to, I am not satisfied in the terms required under section 138. The evidence sought to be admitted in each voir is thus not admitted.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 July 2017.
Legal Associate:
Date: 27 July 2017
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