Mornony & Nicolle (No 2)
[2023] FedCFamC1F 31
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mornony & Nicolle (No 2) [2023] FedCFamC1F 31
File number MLC 6366 of 2019 Judgment of WILSON J Date of judgment 31 January 2023 Catchwords FAMILY LAW – EVIDENCE – application for the use of recordings made from a mobile telephone of skype conversations – whether communications that are prohibited by the Surveillance Devices Act could be adduced pursuant to the exception in s 11(2)(b)(ii) – consideration of the meaning of “lawful interests” in s 11(2)(b)(ii) of the Surveillance Devices Act – the exception in s 11(2)(b)(ii) was engaged in the circumstances of this case – recordings admitted into evidence. Legislation Evidence Act 1995 (Cth) s 138
Family Law Act 1975 (Cth) ss 4AB and 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.16
Surveillance Devices Act 1999 (Vic) s 11
Cases cited DW v R [2014] NWSCCA 28
Galea v Galea (1990) 19 NSWLR 263
Gin v Hing (2019) 63 Fam LR 258
Huffman & Gorman (No. 2) [2014] FamCA 1077
Janssen v Janssen (2016) 55 Fam LR 439
Thomas v Nash (2010) 107 SASR 309
Division Division 1 First Instance Number of paragraphs 30 Date of last submission 31 January 2023 Date of hearing 30 January 2023 Place Melbourne Counsel for the applicant Ms A. Goldthorp Solicitor for the applicant Coote Family Lawyers Counsel for the respondent Mr T. Byrne Solicitor for the respondent RRR Lawyers Counsel for the Independent Children's Lawyer: Mr N. Gardiner ORDERS
MLC 6366 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR MORNONY
Applicant
AND MS NICOLLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by
WILSON J
DATE OF ORDER
31 JANUARY 2023
THE COURT ORDERS THAT
1.The USB device on which the recording of the three telephone conversations between the parents and children, exhibited to the father’s affidavit made 30 September 2019, are admitted into evidence marked exhibit F1.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
Immediately after detailed openings on the first day of the trial of this proceeding, counsel for the father sought leave to play the audio and visual recordings of three skype recordings taken in 2018, that is to say prior to the commencement of family law litigation between the children’s parents.
Counsel for the mother objected to that course. Counsel for the ICL supported the father’s proposal.
In essence, it was said on behalf of the father that the recordings on which he wished to rely were relevant as they addressed the mother’s behaviour while she is with the children and therefore went to the issues to be determined pertaining to section 60CC(2)(b) of the Family Law Act, that is to say, the need to protect the children from, among other things, psychological harm from being exposed or subjected to family violence.
A major issue in the case is whether the mother is amenable to an order for equal shared parental responsibility having regard to her emotional, psychological and psychiatric fabric.
In essence, it was said on behalf of the mother, that the recordings depict events too long in the past to be utile and they were created at a time even prior to this litigation being on foot. Counsel for the mother submitted that the recordings had been taken in contravention of s 11 of the Surveillance Devices Act 1999 (Vic) (“SDA”) and therefore were inadmissible. He contended that the exception in section 11(2)(b) of the SDA did not apply as the father’s lawful interest mentioned in that subsection were not engaged in the circumstances of this case. He further submitted that it has been held that even if s 11(2)(b) of the SDA was enlivened, under s 138 of the Evidence Act 1995 (Cth) it was doubtful whether the probative benefit of receiving the recordings in evidence outweighed their prejudicial value and, if admitted, the weight to be accorded to the recordings was near zero.
All counsel relied on the observations I made on the operation of s 11(2)(b) of the SDA in Gin v Hing.[1] Additionally, counsel for the father relied on the observations of McClelland J (as the Deputy Chief Justice then was) in Janssen v Janssen[2] in relation to the phrase in section 11(2)(b)(ii) “lawful interests” of the father.
[1] (2019) 63 Fam LR 258.
[2] (2016) 55 Fam LR 439.
The mother’s psychological fabric and her capacity to adequately parent the children is a hotly contested issue in this litigation. For the purposes of this ruling, it is desirable that I say no more than the father seeks an order that he has sole parental responsibility for the children by reason mainly that the mother exposes the children to family violence as defined in section 4AB of the Family Law Act. The mother seeks an order for equal shared responsibility. She trenchantly resists the assertions made against her that she is incapable of properly parenting the children. At the end of the trial of this proceeding, I will be required to make an order allocating parental responsibility, either in the form sought by the father or in the form sought by the mother.
During submissions on the first day of the trial as proceeding, counsel for the father eventually conceded that the impugned recordings over which the parties were fighting in fact contravened the provisions of the SDA because, essentially, they were a communication or publication of a private conversation using a listening device. With that concession, the focus became one of the operation of section 11(2)(b) and in particular, whether the publication was no more than was reasonably necessary (relevantly here) for the protection of the father’s lawful interests.
Before addressing in more detail the competing submissions of the parties, it is necessary for me to recite that several witnesses who are to give viva voce evidence in this case have seen and heard the impugned recordings and given their evidence, at least in part, in reliance upon the information in the impugned recordings. If the impugned recordings were ruled as being inadmissible by me, it followed that the status of the evidence of those other witnesses who had proceeded on the validity of the impugned recordings was necessarily in doubt, as all counsel conceded.
Counsel of the father further informed me that when this proceeding was in (what was then) the Federal Circuit Court of Australia, her Honour Judge Stewart ruled on the information in the recordings for the purposes of an interlocutory determination. I told Ms Goldthorp that I was not bound to do likewise if I took the view that the recordings were inadmissible. It is relevant to observe that no point had previously been taken in the running of this case about the evidentiary status of the recordings until the commencement of the trial, for example, by the bringing of an application for the determination of the evidentiary status of the recordings.
The recordings in issue were made in late 2018. The recordings concerned information imparted during three telephone calls placed by the father to the mother on the mother’s mobile telephone using skype technology. In para 167 of the father’s trial affidavit made 10 August 2022 the father purported to narrate the precise words used by each person who spoke during those telephone conversations. In certain passages of that affidavit the father purported to attribute a precise time when a person uttered certain words as if the paragraph provided a contemporaneous transcript of the exchange. In other passages of paragraph 167 of the father’s affidavit made 10 August 2022, the father introduced commentary to his statements rather than confining his affidavit to facts only as was required by rule 8.16(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. He deposed to receiving hundreds of messages from the mother between late 2018 and early 2019, which messages he described as being abusive. In other parts of the father’s trial affidavit, he purported to narrate the facial expression of the mother with descriptions ranging from “neutral”, “sarcastic”, “very aggressive” and to “her body language became more erratic and more abusive”. He then provided word perfect quotations of the words he said the mother actually stated during all of those three calls.
The father deposed to the children having been physically next to the mother during each of the three telephone calls. The father attributed the following exchange, word perfectly, to the mother, allegedly uttered by the mother in the presence of the children –
[Dad] has still has not fixed anything, [dad] has let [mum] down, [dad] has caused everyone a lot of suffering, especially the children. [Dad] deserves nothing. [Mum] deserves an apology every moment of every day either that or you can end it. Can't hear you at all. Don't want to hear you. Don’t want to know you. Want instead to be dead in the street. By your hands, or that of your sisters, or that of your father who doesn't feel like I deserve to live. You have to stand up for me. ME. I matter. I matter. My life matters. My life is important enough for my children, important enough to be lived. You owe me my life. My life![3]
[3] Reference to “[Dad]” was a reference to the father and reference to “[Mum]” was a reference to the mother.
The father deposed to having reported that exchange to Victoria Police and the Department of Health and Human Services.
In her trial affidavit made 24 August 2022, the mother did not meaningfully engage with the details of paragraph 167 of the father’s trial affidavit. The mother’s version of events in relation to those three telephone calls is recorded in paragraphs 181(167-168) of her trial affidavit. That evidence consisted largely of the mother’s disagreement with the father’s evidence, her statement that she was concerned with the father’s drug taking, the mother’s statement that she did not feel safe without third parties, her statement that the father failed to include in his evidence various emails she said were inappropriate, her denial of any threatened self-harm and her denial that the father reported the telephone calls to police or to any government agency.
Pausing at that point in the narrative, based solely on the affidavit evidence of the father and the mother of those three telephone calls in late 2018 I would be left with an extremely detailed recital, near word perfect, of the telephone calls as adduced by the father as compared with a superficial disagreement with certain unspecified aspects of his evidence as given by the mother. In other words, the mother offered little by way of evidence of her own version of events of those three telephone calls. She did not put a contrary version of what she allegedly said, nor did she offer any evidence of the tone of her communication or of her behaviour. The recorded version of those calls is likely to be the best evidence of the information imparted during those three calls. Further, the recorded version of those calls is likely to reveal not only what was said, but how it was said, which, according to Galea v Galea,[4] can often be important in any assessment of witness veracity.
[4] (1990) 19 NSWLR 263.
In this case, the recordings if admissible will enable me to determine whether the father’s version of the telephone calls is correct. It will also enable me to ascertain whether a factual basis exists by which the mother’s disagreement with the father’s evidence is well-founded, so long as the recordings are admissible.
In view of the concession made by counsel for the father, the real issues for my determination on the admissibility of the recordings are threefold, namely –
(a)whether the provisions of s 11(2)(b)(ii) of the SDA are engaged;
(b)if not, whether the probative value of the recordings outweighs the prejudicial nature of the evidence in the recordings; and
(c)whether, even if received into evidence, the information in the recordings is limited merely to weight.
It became necessary to take each in turn.
Section 11(2)(b)(ii) of the SDA introduces the phrase “for the protection of the lawful interests of the person making it” (“it” being the record of the private conversation as was held in Thomas v Nash).[5]
[5] (2010) 107 SASR 309.
The issue that took up most of the debate on the first day was whether the recordings were “no more than is reasonably necessary ... for the protection of the lawful interests of” the father. No definition exists of the phrase “lawful interest”. Counsel for the father contended that the father’s lawful interests included his entitlement to promote the best interests of the children and that the promotion of the children’s best interests was a lawful interest of the father. I confess to encountering some difficulty in that submission for several reasons, namely –
(a)the ICL as a separate statutory creation has been appointed in this case to advance the best interests of the children, separate and apart from the warring parents;
(b)despite observations at paragraph 58 of my reasons in Gin v Hing,[6] it is not readily apparent how the promotion of the children’s best interests is “a lawful interest” possessed by the father;
(c)the subsection speaks of the protection of the lawful interests of the person who made the recording; and
(d)it is none too easy to see how the introduction into evidence of the recordings represents any “protection” of the husband’s lawful interests, whatever those lawful interests may be.
[6] (2019) 63 Fam LR 258.
Counsel for the father placed reliance upon the decision of McClelland J in Janssen v Janssen as has already been observed. That was an ex tempore ruling in which his Honour followed the decision in Huffman & Gorman (No. 2),[7] where Hannam J held that it is notoriously difficult to obtain evidence of family violence taking place behind closed doors. To my way of thinking, that statement provides no guidance at all on the proper construction of the phrase “lawful interests” as appearing in the New South Wales equivalent to section 11(2)(b)(ii) of the SDA. McClelland J in Janssen also relied on the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in DW v R[8] in which the relevant lawful interest in that case was said to be the mother’s right to protect her interest not to be intimidated or harassed.
[7] [2014] FamCA 1077.
[8] [2014] NWSCCA 28
Counsel for the father submitted that the father’s lawful interests that he sought to protect by the adduction of the recordings were –
(a)his claims in this case that the mother suffered and continues to suffer from psychological and psychiatric conditions;
(b)his contention in this case that the mother should not have an order for equal shared parental responsibility by reason of her emotional or psychiatric condition, rendering her unsuitable for such an order; and
(c)his contention that the mother’s behaviour, in part, provides an evidentiary foundation for an order protecting the children from family violence within the contemplation of section 60CC(2)(b).
Counsel for the father submitted that each such claim or contention represented a lawful interest he wished to protect by advancing the evidence depicted in the recordings.
While true, the recordings relate to events in years long gone. In and of itself, that is not a basis for concluding that the exclusion in section 11(2)(b)(ii) does not apply to the general prohibition against admitting evidence of illegally obtained recordings of private conversations.
In Thomas v Nash, a criminal case, Doyle CJ held that most decisions on the statutory equivalent to section 11(2)(b)(ii) proceed on the basis that it is not enough to have a reliable record of the particular conversation as the basis for admitting evidence of illegally obtained recordings of private conversations. Of course, this case is not a criminal case, so little by way of parallel of reasoning can be divined from the suggestion that a recording sought to be admitted by an accused in his defence of a serious crime is a “lawful interest”. That said, where a person (here the father) seeks to rely on section 11(2)(b)(ii) by contending that the conversations recorded are tendered as part of his evidence on a discrete issue, namely his application for sole parental responsibility on the basis of the mother’s unsuitability for an order for equal shared parental responsibility, it seemed to me that a “lawful interest” is in fact and in law enlivened.
A more difficult question was whether the father’s application to admit the recordings advances “the protection” of the identified lawful interest. In this case, the mother opposed the father’s application for sole parental responsibility. She denies that a need exists to protect the children from exposure to family violence when they are in her care, for the purposes of section 60CC(2)(b). By way of rejoinder, the father contends that he wishes to rely on the recording so as to protect his own lawful interests of adducing evidence in relation to section 60CC(2)(b). The “protection” mentioned in section 11(2)(b)(ii) of the SDA seems to me to apply to the protection of his lawful interests of protecting the children from exposure to family violence. While true that such a construction seems to be tortured, at least at face value, such a construction is open and I propose to apply it.
In my view, s 11(2)(b)(ii) was engaged in the circumstances of this case.
Next, it became necessary to consider the probative value of the recordings and whether it outweighed the prejudice of admitting them into evidence. That issue engaged s 138 of the Evidence Act. In Janssen v Janssen, McClelland J employed s 138 in concluding that the desirability of admitting the recordings outweighed the undesirability of admitting the recordings. While interesting, every case turns on its own facts and little utility is served in deciding this case in reliance upon the way Hannam J decided the fact-specific case before her Honour or on the way McClelland J decided the case before his Honour. In this case, I take the view that the evidence is admissible under s 11(2)(b)(ii) of the SDA so a consideration of s 138 is strictly not necessary. That said, the evidence is likely to go to issues in respect of s 60CC(2)(b), s 60CC(3)(b), s 60CC(3)(f), s 60CC(3)(i), s 60CC(3)(j) and s 60CC(3)(m) of the Family Law Act to name but a few of the provisions in respect of best interests considerations. The recordings will also assist in assessing witness veracity when the parents are challenged in cross-examination on aspects on those recordings.
Counsel for the mother contended that even if the recordings are admitted into evidence, I should limit the use of the evidence in those recordings to weight. When the evidence is admitted it is admitted for all purposes. What use counsel makes of the evidence must await cross-examination and final addresses. It is not appropriate for me to curtail the use to which the recordings may be put and so I expressly decline to do so.
I now direct that the recordings be played in open court.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 31 January 2023
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