Michaels and Harradine - [2018] FamCA 657

FAMILY COURT OF AUSTRALIA

MICHAELS & HARRADINE

[2018] FamCA 657

FAMILY LAW – EVIDENCE – application to admit evidence in the form of electronic recording – where admission challenged on the basis that the material was unlawfully obtained – where recording reasonably necessary for the protection of the lawful interests of that principal party – material not unlawfully obtained.

Surveillance Devices Act 2007 (NSW)

DW v R [2014] NSWCCA 28
R v Coutts [2013] SADC 50
Thomas v Nash [2010] SASC 153

APPLICANT:

Mr Michaels

RESPONDENT:

Ms Harradine

INDEPENDENT CHILDREN’S LAWYER:

Ms S Hiles

FILE NUMBER:

CAC

438

2018

DATE DELIVERED:

13 August 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

13 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Behrens

SOLICITOR FOR THE APPLICANT:

Belbridge Hague

COUNSEL FOR THE RESPONDENT:

Ms Dart

SOLICITOR FOR THE RESPONDENT:

Rama Myers Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid, ACT

Orders

The step of recording was reasonably necessary for the protection of the wife’s lawful interests, and so I determine that the recording was not unlawfully obtained.

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 Michaels & Harradine 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 CANBERRA

FILE NUMBER: CAC 438 of 2018

Mr Michaels

Applicant

And

Ms Harradine

Respondent

REASONS FOR JUDGMENT

In this matter the mother has led evidence in her affidavit material of incidents occurring on 3 and 4 August 2016. That evidence is an account of an incident or incidents of family violence, both of a physical and non-physical nature. In leading evidence of those incidents in her affidavit, the mother also attests to having taken a recording in respect of at least part of those incidents on her telephone. She now seeks to have admitted into evidence recordings and transcript of those recordings in support of her resistance of the father's current interlocutory application before the Court to extend the time that he will spend with their child.
In seeking to admit the material the mother points to previous denials on the part of the father as to the incident.
Objection is taken by the father on the basis that it is said that this is material that has been unlawfully obtained. I have been taken to the provisions of the Surveillance Devices Act 2007 (NSW) which sets out a general prohibition, relevantly, to a person using a listening device to record a private conversation to which the person is a party.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michaels and Harradine

Details

AGLC: Michaels and Harradine [2018] FamCA 657
Case: [2018] FamCA 657
Decision Date: 13 August 2018

CaseChat Overview and Summary

In *Michaels and Harradine*, heard before Gill J, the dispute concerned the admissibility of a recording made by the wife. The husband sought to exclude this recording, arguing it was unlawfully obtained.

The central legal issue before the court was whether the recording made by the wife was obtained unlawfully, thereby rendering it inadmissible in the proceedings. This required the court to consider the circumstances under which the recording was made and whether those circumstances met the legal threshold for lawful acquisition.

Gill J determined that the recording was not unlawfully obtained. His Honour reasoned that the step of recording was reasonably necessary for the protection of the wife’s lawful interests. This finding indicates that the court applied a test of reasonable necessity in assessing the lawfulness of the recording, concluding that the wife’s actions were justified by the need to safeguard her legal rights.

Consequently, the court determined that the recording was admissible.

Orders

Orders of the court

The step of recording was reasonably necessary for the protection of the wife’s lawful interests, and so I determine that the recording was not unlawfully obtained.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.