Michaels and Harradine

Case [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 of 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

  1. 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

  1. 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. 

  2. In seeking to admit the material the mother points to previous denials on the part of the father as to the incident.

  3. 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.…

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Michaels and Harradine [2018] FamCA 657
Case
[2018] FamCA 657
Decision Date

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

1.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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