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. That is the circumstance here. The mother has used a listening device to record such a conversation but potentially also to record matters which go beyond a conversation.
For the purposes of this ruling I will deal with the contents on the basis that they fall within the definition of private conversation, without determining whether they do or not, as the matter was not argued before me as to whether or not the matters might fall outside the concept of private conversation.
Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1). That is, while s 7(1) sets out a general prohibition, that prohibition does not apply on particular conditions. The particular condition which is advanced by the mother is that she, as a principal party to the conversation, consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party.
In order to make out the exception it is necessary for the mother to show that the recording is reasonably necessary for the protection of her lawful interests. She has advanced the reason for the material was such that she might have evidence of family violence where the father denies the family violence, noting that family violence occurs largely behind closed doors. In this instance, what is described occurred effectively behind closed doors, occurring on a somewhat isolated property.
I was taken to the decision of the New South Wales Court of Criminal Appeal of DW v R [2014] NSWCCA 28 both to identify what might constitute lawful interest and what might constitute reasonably necessary. Examples were set out in that decision of where justifications may be considered to constitute being in relation to a lawful interest. Those justifications included, at [31], the desire of a person to protect themselves from being charged with making false allegations against other people. Reference was made to the South Australian decision by Chief Justice Doyle (as he then was) of Thomas v Nash [2010] SASC 153, which identified circumstances where the conversation being recorded related to a serious crime or an allegation of serious crime, or to resisting such an allegation, and the former Chief Justice there noted that the Court was more likely to find that the recording of a conversation relating to the crime could be made in the protection of the person’s lawful interests.
A further example was identified at [34] of making a recording where a serious dispute erupted and it was anticipated that there will be a dispute as to different versions of an arrangement as being a matter which might give rise to such a lawful interest.
A further example was taken at [35] in R v Coutts [2013] SADC 50 where it was determined that a recording which was described as a graphic account of threats, belittlement and the sounds of forced sex while the complainant was crying and in distress and pain was admissible on the basis that it was made in the lawful interests of the complainant. A separate recording was made of a conversation which the accused told the complainant how he knew how to choke her without leaving any marks as being matters which related to lawful interests. It was there identified as relating to that because it was the complainant's interest in defending herself against the extreme levels of harm and danger she faced.
These are examples which go to the question of what might constitute a lawful interest. In this instance, proof of what took place by means of recording goes to the protection of the recorder, the mother in this instance, from violence and constitutes a matter which is within her lawful interests.
A question still remains as to whether or not it was reasonably necessary for her to make the recording to protect those lawful interests. I was again taken to DW v R and the following submissions were made in support of the father's contention that it was not reasonably necessary for the recording to be taken. The first was that on the date the recording was made the mother telephoned the police but subsequently told the police that she did not wish to make a report. Under circumstances where she had recourse to a different manner of resolving the issue of violence, that is, the calling of the police, but chose not to press ahead with that matter, it was submitted that it is difficult to say that it was reasonably necessary for her protection for the recording to be taken.
It was noted in support of this that the mother took no legal action in support of what might broadly be considered to be the protection of those legal interests until January 2018 whereas the recording took place in August 2016. That is, it was said that it was not reasonably necessary because there was an alternate remedy available to the mother via the police, that the necessity for the recording was undermined because although the mother had access to the police she did not use them and thirdly, by the delay in seeking remedy. However, it must be observed that the exception contained at [3] relates, it seems, to the time of the making of the recording. That is, it is expressed as reasonably necessary, which, explained in context, has to refer to the time of the recording of the private conversation. Now, at the time of the recording of the conversation, there is the allegation that there was violence occurring to the mother in a reasonably isolated place, being her home. There was no witness who could verify what was taking place at that point and there was no means for the mother to substantiate any claims she might in the future make that she had been the subject of family violence at the hands of the father.
The substantiation of private violence may be key to determining not only what occurred during the isolated incident but more broadly in the context of what follows the incident. The importance of substantiation of such claims means that it was reasonably necessary for the mother to make the recording in these particular circumstances, because it protects her against the inadequacy of proof which might otherwise be available to her, particularly in circumstances such as here, where it is proof of what had become a contested factual incident. That is, it must be considered that the reasonable necessity must be connected to the protection of the lawful interests.
In this case, without substantiation there is the potential denial of her lawful interests for protection against violence, which means that the step of recording was reasonably necessary and so I determine that the recording was not unlawfully obtained.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 August 2018.

Associate:

Date: 30 August 2018