TESTA & FIELDS

In this matter before Judge Kemp, the parties were the mother and the father of a child, X. The dispute concerned parenting arrangements for X, including the mother's proposed relocation with X to Town B, and the admissibility of certain video and audio recordings made by the father.

The court was required to determine the parenting orders for X, specifically who X should live with, whether the mother should be permitted to relocate with X, and the nature and extent of time and communication X would have with the father. A key legal issue was whether video and audio recordings, along with a transcript thereof, taken by the father on a mobile telephone were admissible as evidence, given potential contravention of the *Surveillance Devices Act 2007* (NSW).

The court applied section 138 of the *Evidence Act 1995* (Cth) to the admissibility question, which requires balancing the desirability of admitting evidence obtained improperly or in contravention of an Australian law against the undesirability of admitting such evidence. The court considered section 7 of the *Surveillance Devices Act 2007* (NSW), which prohibits the recording of private conversations without consent, unless specific exceptions apply. The court found that the visual recordings themselves would not contravene section 7. The father argued that the recorded conversations were not "private" or that consent had been given. The court noted the definition of "private conversation" in section 4 of the *Surveillance Devices Act 2007* (NSW), which excludes conversations where parties ought reasonably expect to be overheard.

The court ordered that X live with the mother, with the mother having sole parental responsibility and being permitted to relocate with X to Town B. The father was to have no time or communication with X for at least three months, conditional upon his commencement of specified courses and counselling. Following this period, supervised time was to commence, progressing to unsupervised time and limited telephone/Skype communication, subject to the father's continued engagement in therapy and counselling. The orders also included provisions regarding therapy for X and the parents, and mutual restraints on discussing proceedings or denigrating each other in front of X. By consent, the parties were to share the costs of the Independent Children's Lawyer and a joint expert.