Neame & Neame (No 2)

Link copied
Case Copied 14 min read

FEDERAL CIRCUIT COURT OF AUSTRALIA

Neame & Neame (No 2) [2021] FCCA 1665

File number(s): PAC 3201 of 2021
Judgment of: JUDGE MYERS
Date of judgment: 2 July 2021
Catchwords: FAMILY LAW – practice and procedure – admissibility of evidence – e recording obtained without permission – evidence improperly obtained
Legislation:

Family Law Act 1975 (Cth), s 60CC

Surveillance Devices Act 2007 (Cth), s 7

Evidence Act 1995 (Cth), s 138
Cases cited:

Parker v Comptroller–General of Customs [2009] HCA 7

Other:

International Covenant on Civil and Political Rights, Article 17

Office of the United Nations High Commissioner for Human Rights published General Comment Number 16

Hansard House of Representatives No.18 Second Reading Speech, Telephonic Communication (Interception) Bill 1960, 5 May 1960 at 1423
Number of paragraphs: 26
Date of hearing: 2 July 2021
Place: Parramatta
Counsel for the Respondent: Mr Todd
Counsel for the Applicant: Ms Lawson

ORDERS

PAC 3201 of 2021
BETWEEN:

MR NEAME

Applicant
AND:

MS NEAME

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:

1.The tender of the two recordings made Boxing Day 2020 and Easter 2021 sought to be placed into evidence by the father is refused.

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).

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 under the pseudonym Neame & Neame (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE MYERS

  1. This is an interlocutory ex tempore decision in the matter of Neame & Neame where the Applicant Father today seeks to tender into evidence recordings of two interactions that took place on Boxing Day 2020 and Easter 2021.

  2. There is no doubt that the video and audio recordings of the interactions between the mother and father were recorded without the permission of the mother.  The question is whether the Court ought to properly allow or exclude the recordings.

  3. Section 7 of the Surveillance Devices Act 2007 (Cth) (‘the Surveillance Devices Act’) provides for a prohibition on installation, use and maintenance of listening devices with several exceptions.

  4. Section 7 provides:

    (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.

    Maximum penalty--500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

    (2)Subsection (1) does…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Neame & Neame (No 2) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] FCCA 1665
Decision Date

CaseChat Overview and Summary

In the matter of Neame & Neame (No 2), heard by Myers J, the applicant father sought to tender two recordings made on Boxing Day 2020 and Easter 2021 in family law proceedings against the respondent mother.

The central legal issue before the Court was whether these recordings, sought to be admitted by the father, should be excluded under section 138 of the Evidence Act 1995 (Cth). This section provides a discretion to exclude evidence obtained improperly or in contravention of an Australian law, unless the desirability of admitting the evidence outweighs the undesirability of its improper or illegal acquisition. The Court was required to consider the definition of "Australian law," "improperly," and "contravention" within the context of section 138.

Myers J applied a two-stage process, consistent with the principles established in cases such as *Parker v Comptroller-General of Customs*. Firstly, the Court determined if the evidence was improperly or illegally obtained. If so, the burden shifted to the party seeking admission (the father) to persuade the Court that the desirability of admitting the evidence outweighed the undesirability of its improper acquisition. The Court considered the ordinary meanings of "improper" and "contravention," noting that "contravention" involves disobedience of a rule of law, while "impropriety" covers a wider range of conduct.

The Court ordered that the tender of the two recordings made by the father on Boxing Day 2020 and Easter 2021 be refused.

Orders

Orders of the court

PAC 3201 of 2021

BETWEEN:

MR NEAME

Applicant

AND:

MS NEAME

Respondent

ORDER MADE BY:

JUDGE MYERS

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:

1. The tender of the two recordings made Boxing Day 2020 and Easter 2021 sought to be placed into evidence by the father is refused.

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).

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 138 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) provides that the Court has a discretion to exclude improperly or illegally obtained evidence and is set out below:Section 138 Exclusion of improperly or illegally obtained evidence(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.(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning, or(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.(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 determining the issue before the Court, it is important to first have regard to whether the evidence had been improperly or illegally obtained, and if improperly or illegally obtained, then consider whether the evidence ought to be admitted. This approach found favour in the decision of Parker v Comptroller–General of Customs[1] in which French CJ discussed the interpretation and then approach to be taken by the Court when looking at whether evidence should be excluded pursuant to the provisions of s 138 of the Evidence Act and held:[1] [2009] HCA 7 at 26.The term ‘Australian law’ is defined in the Dictionary to the Evidence Act as a ‘law of the Commonwealth, a State or a Territory’. The word ‘law’ is defined in cl 9 of Pt 2 of the Dictionary:(1)A reference in this Act to a law of the Commonwealth, a State, a Territory or a foreign country is a reference to a law (whether written or unwritten) of or in force in that place.(2)A reference in this Act to an Australian law is a reference to an Australian law (whether written or unwritten) of or in force in Australia.There is no definition of ‘impropriety’ or ‘contravention’ in the Evidence Act.Section 138 was one of the provisions of what became the Evidence Act 1995 (Cth) and the New South Wales Evidence Act recommended by the Law Reform Commission in its Report No 38, published in 1987. The proposed cl 119, as it was numbered in the draft Act, was explained by the Commission[22]:This clause provides a discretionary exclusion for evidence obtained improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted.The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the Court that it should be admitted. There is thus a two stage process[23]. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.The meanings to be accorded to the terms ‘improperly’, ‘impropriety’ and ‘contravention’ in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of ‘improper’ include ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’[24]. ‘Contravention’ refers to ‘[t]he action of contravening or going counter to; violation, infringement, transgression’[25].Without essaying an exhaustive definition, the core meaning of ‘contravention’ involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as ‘impropriety’ although that word does cover a wider range of conduct than the word ‘contravention’.[Footnotes omitted]

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.