Neame & Neame (No 2)

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.