VC v Secretary of the Department of Communities and Justice

[2024] NSWDC 166

District Court

New South Wales

Medium Neutral Citation:

VC v Secretary of the Department of Communities and Justice & Ors [2024] NSWDC 166

Hearing dates:

7-9 May 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [69]

Catchwords:

EVIDENCE – child care proceeding – plaintiff records telephone conversation with third party – other parties object to transcript of sound recording – whether evidence relevant – whether evidence illegally obtained – whether desirability of admitting illegally obtained evidence outweighed by undesirability of admitting evidence illegally obtained

CIVIL PROCEDURE – child care appeal in District Court – whether and in what circumstances, Court is bound by rules of evidence where there is dispute as to admissibility of evidence impugned for illegality

Legislation Cited:

Children and Young Persons(Care and Protection) Act 1998 (NSW), ss

Civil Procedure Act 2005 (NSW), ss 56-60, 62

Convention on the Elimination of All Forms of Racial Discrimination

Evidence Act 1995 (NSW) s 126C, 138

Racial Discrimination Act 1975 (Cth)

Surveillance Devices Act 2007 (NSW), ss 4, 7

Cases Cited:

Kadir v The Queen (2020) 94 ALJR 168

Rathswohl v Court [2020] NSWSC 1490

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

The Father (Plaintiff)
The Secretary of the Department of Communities and Justice (First Defendant)
The Minister for Families and Communities (Second Defendant)
The Mother (Third Defendant)

Representation:

Counsel:
Plaintiff (self-represented)
Ms S Mahony (First and Second Defendant)
Ms P Jones (Third Defendant)
Mr P Ryan (Solicitor Advocate, Independent Legal Representative)

Solicitors:
NSW Crown Solicitor’s Office (First and Second Defendant)
Legal Aid NSW (Third Defendant)
P Ryan Solicitors (Independent Legal Representative)

File Number(s):

2023/00288971

Publication restriction:

Children and Young Persons names anonymised in accordance with s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Parents’ names are also anonymised.

JUDGMENT

Background

1. This proceeding concerns an appeal from a decision of the Children’s Court in which, relevantly, the Court determined that a child should be removed from the Father’s care and there was no realistic possibility of restoration to him. It is now the case that the child is under the care of his mother with the Department of Communities and Justice (‘DCJ’) or Minister being responsible for parental responsibility insofar as the father’s contact with the child is concerned. It is the father who has brought an appeal to this Court.

2. It might be thought apparent in what I have said so far that the parents of the child are bitter adversaries. Indeed, the mother had obtained apprehended violence orders against him which continue to subsist. Early at the hearing, without the Father’s opposition, I ordered that she could participate in the hearing, and give evidence remotely, on the basis of her asserted fear of the father. It is not unfair to characterise the case of the Secretary for the DCJ and the Minister (First and Second Defendants) that a large part of the reason for the removal of the child from both parents (initially), and the initiating application in the Children’s Court, was the concern that the Child was in need of protection because of his exposure to acts of domestic violence perpetrated by the Father against his Mother.

3. Extraordinarily though it is (and highly reluctantly as I am) to refer to a party’s ethnicity, in view of the content of most of the Father’s submissions on the current application, which I will address further below, it is pertinent to observe that he is of Chinese heritage, although he has born in and appears (from his accent) to have spent much of his life in Canada. Further the Mother was born to Chinese parents, but was born in and appears (from her accent) to have spent much of her life in New Zealand. They met in about 2010. The Child was born in 2017.

4. Close to the outset of the proceeding, Counsel for the First and Second Defendants indicated that there was not only a significant volume of affidavits that the Father had filed in the Children’s Court, and in this Court, but also that a substantial part of that included sound recordings of conversations taken by the Father apprently without the consent of the person(s) he was speaking to. Counsel for the Secretary and Minister foreshadowed her objections to those sound recordings. It became apparent, also, that Magistrate Crompton in the Children’s Court had rejected, as inadmissible, certain sound recordings.

5. As is apparent from various paragraphs in the Father’s Summons in this Court, a significant complaint, or grievance, of the Father was the Magistrate’s decision to exclude those sound recordings in the Children’s Court.

6. The proceeding in this Court is at the stage where the First and Second Defendants (the Secretary and Minister) have closed their case. The Mother was in the process of giving evidence and was being cross-examined by the Father (who represents himself in this proceeding, as he did in the Children’s Court).

7. At T 224, the Father sought to cross-examine the Mother on the content of a part of his affidavit. The relevant part of that affidavit (paragraph 4 of the Father’s affidavit of 22 January 2024, CB 3490 and Annexure A, which begins at CB 3494-3495. Annexure ‘A’ spans nearly 3 pages). Paragraph 4 of the body of the affidavit is brief and I can conveniently set it out in full:

“I confirm that Tim from Parents in Distress said:   

Then I did have a conversation with child protection, informed them that I was unable to speak about you because of confidentiality. Child protection (sic) were wanting to push that the child was at risk with you. I said, no, that’s not the case. Any immediate danger, they were pushing to have me say that, which obviously I can’t because it’s not true.”

8. I have considered Annexure A. Putting aside the contents on the face of the document, it appears as though the transcript is incomplete: it is not a continuous flow of conversation but with reference to time intervals, it appears to set out self-selected features, or highlights, of the conversation. The Secretary did not rely upon ss 135-136 of the Evidence Act 1995 (NSW) (‘Evidence Act’), or on the basis of unfair prejudice, so I need not consider whether those provisions are engaged. I will return later to content of the document later in these reasons.

9. The Father’s reference to this evidence prompted an objection by Counsel for the Mother.

10. The substance of that objection was the same objection that Counsel for the Secretary and Minister had foreshadowed at the outset of the hearing: that the witness was being cross-examined on evidence of a transcript of sound recordings taken by the Father that were inadmissible.

11. The parties agreed that this presented an appropriate opportunity for Counsel for the Secretary and Minister to fully argue the inadmissibility of evidence taken by the Father constituting sound recordings taken without another person’s consent. The parties agreed that the Court could take this singular objection as being representative of other items of evidence detailing the transcripts of sound recordings that the Father had taken that appeared in his affidavit evidence.

Parties’ arguments

The secretary’s submissions

12. Although it was the Mother’s Counsel who made objection, it was Counsel for the Secretary and Minister who made the argument. Counsel for the Mother adopted the Secretary’s position. The Independent Legal Representative was neutral on the argument.

13. Counsel for the Secretary’s objection centred upon the following contentions:

1. The content of the evidence specifically objected to was irrelevant;

2. The evidence was illegally obtained; and

3. The Court should not admit the illegally obtained evidence as the desirability of its admission was outweighed by the undesirability of admitting illegally obtained evidence.

14. Counsel for the secretary contended that the evidence was illegally obtained. Counsel referred me to ss 4 and 7 of the Surveillance Devices Act 2007 (NSW) (‘SD Act’).

Statutory provisions

15. Section 7 of the SD Act 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.”

16. Section 7(3)(b) lists an exception to the prohibition in s 7(1)(b). Section 7(3)(b) provides:

“Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if--

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation--

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.”

17. Section 4 of the SD Act provides (material) definitions. A ‘private conversation’ means:

any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only--

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

18. A ‘principal party’, in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation.

The Father’s submissions

19. Before I address the content of the Father’s submissions, and at the risk of repetition given my earlier decision this morning on a recusal application, it is pertinent to point out an unusual procedural feature of it. As was apparent on the face of the Transcript, in his oral submissions, the Father spent a significant amount of time making them (T 231-245) to a point where I intervened. Acknowledging that some part of that time involved my asking, and the Father answering, questions intended to enhance my understanding of his submissions, his status as an unrepresented litigant, but having regard to the content of his oral submissions, pursuant to s 62(3)(d) of the Civil Procedure Act 2005 (NSW), I directed that the Father be limited as to how much further time he had to make oral submissions. I noted that he would have 15 minutes further (roughly the period of time that Counsel for the Secretary took to complete her submissions in chief), from 3:22pm, to complete his oral submissions. I had my Associate inform me 5 minutes from when that period expired and supplied the Father with a 5 minute warning of the expiry of that period and conveyed that to the Father (T 251.31). Taking into account some intervening questions by me, the Father was stopped from making submissions (T 254.14) which my Associate informed me was at 3:40pm. I will return to this procedural feature later. I note that at the conclusion of argument, the Father complained that, in effect, he was short-changed about the 15 minute period that he was given. I disagreed with that complaint and note, further, that it was not articulated before the Secretary’s Counsel commenced her submissions in reply. For reasons shortly to be indicated, having foregone the opportunity to directly engage with the provisions of the SD Act and Evidence Act in his oral submissions in chief, after hearing the Secretary’s Counsel’s submissions, and given the content of his submissions in chief, in my view, it would have been unfair to the Secretary and would have prolonged what was an already protracted argument to have allowed the Father to respond to argument about the application of those provisions in any further submission in reply.

20. In aid of his oral submissions on the application, the Father relied upon the content of a copied version of his Summons (MFI 6) and another document (MFI 5) that he had prepared the previous evening. The latter document had been prepared after the Father had cross-examined (or partly cross-examined) some of the Secretary’s witnesses. This document can speak for itself, but putting its content very generally, much of it had to do with how the Father approached his cross-examination in this Court, and comparing it to his participation in the Children’s Court. Another feature of the document was criticisms the Father made of Magistrate Duncombe, one of the lawyers representing other parties, DCJ witnesses and, to some extent (inferentially) myself.

21. As the Father explained, paragraphs 2-12 (both paragraphs numbered 12), 16-17, 44-45 of the Summons were relied upon.

22. Paragraphs 2-12 (including the first paragraph numbered 12), in the aggregate, complained about Magistrate Crompton’s decision to exclude audio recordings that the Father wanted to rely upon in the Children’s Court proceeding. The Father considered that the decision was not only erroneous because the Children’s Court was not bound by rules of evidence (as contained in the Evidence Act) but also inconsistent, as it was asserted that the Magistrate had allowed the Secretary and Minister to rely upon sound recordings in the Children’s Court. Moreover, at (the first) paragraph 12, the Father asserted that Magistrate Crompton’s decision to exclude sound recordings that the Father wanted to rely upon was “evidence of racial bias of Magistrate Crompton and Magistrate Duncombe”.

23. At paragraphs 16-17 featured accusations that Mr Chance (a DCJ caseworker), the DCJ generally and Wesley Mission had “lied to the (Children’s) Court about my conduct”. He contended that ‘officers of the Court’ (which, read with the second numbered paragraph 12 I infer is a reference to lawyers Mr McLaughlan and Ms Alam) and the Children’s Court had acted to prevent him from submitting evidence. This amounted to a “derogation” of the Racial Discrimination Act 1975 (Cth) (‘RD Act’) and Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’).

24. Paragraphs 44-45 refer to provisions of the RD Act and CERD. This was done in the context of an argument about a subpoena that the Father apparently filed in the Children’s Court.

25. In oral argument, I tried to ascertain from the Father the relevance to my present determination what Magistrate Duncombe and/or Magistrate Crompton ruled about rejecting sound recording evidence had to me. Further I was seeking clarity as to whether the Father was suggesting that a rejection in the Children’s Court of sound recording evidence, or other conduct by employees of the DCJ in the Children’s Court proceedings (assuming that was relevant to what I had to determine) manifested racial bias against the Father. The Father submitted that rulings about evidence can manifest racial discrimination. He referred to an array of publications on the subject of racial discrimination in this country and other jurisdictions.

26. The Father did not, however, contend that provisions of the RD Act are constitutionally inconsistent with the Evidence Act, or SD Act. Although he argued that the RD Act may ‘nullify’ the rules of evidence, he did not explain how. Nor did he explain how the provisions of the federal act could affect the interpretation of that NSW legislation.

27. On the premise that conduct of Magistrates in the Children’s Court proceeding was relevant, I invited the Father to indicate by reference to any transcript, be it reasons for a decision to exclude sound recordings of evidence or even argument about it, parts of it that demonstrated bias by the Magistrate(s) (T 243-244). The father did not supply me with evidentiary references.

28. I also invited the Father to make such submissions as he might wish to make in response to the Secretary’s submissions regarding the SD Act and s 138 of the Evidence Act. The father did not respond to the Secretary’s arguments about the application of s 7 of the SD Act or s 138 of the Evidence Act.

29. After a time limit had been imposed on him in his oral submissions, the Father referred me to statistics of and other arguments about the phenomenon of racial discrimination in Australia. He sought to draw a connection between those statistics and commentary about racial discrimination in this country, with the Department of Communities and Justice and its personnel. He appeared to equivocate whether he was contending that any of Mr Chance, Ms Veles or Ms Taylor were racially discriminatory against him: his common answer was ‘not necessarily’ (T 248).

30. Another part of his argument, referred to in the Summons (regarding what occurred in the Children’s Court) is that because the Secretary or the Mother’s Counsel respectively read affidavits that touched upon the Father’s evidence about sound recordings, that meant that the Father’s evidence should remain.

31. He further submitted that the evidence of sound recordings was important because he believed that the Wesley Mission had lied to him and that police had abused him.

32. At T 251, the Father verbally submitted the following:

“The audio recording directly shows that the claim of why I have not seen my son is not true. Excluding the evidence would mean that racial discrimination is de facto legalised because there would be nothing to stop someone from being racist to you. As long as there's no‑one else around, they can be racist to you if they're in a provision of goods and service, and an audio recording would be the only way that you, you can defend yourselves and you, you can prove it. The high, the high number, the established proof that people of colour are disproportionately affected in child protection cases in New South Wales, that directly shows it, people of colour are directly, directly have their children taken out of care at a disproportionate rate, that is not denied”.

The Secretary’s submissions in reply

33. In her submissions in reply (following the Father’s submissions which did not engage with the application of the above statutory provisions except only in a limited respect – see below), Counsel for the Secretary also referred the Court to s 7(3)(b) of the SD Act.

34. As to s 7(3)(b), Counsel for the Secretary referred the Court to a decision of Rees J in Rathswohl v Court [2020] NSWSC 1490 which dealt with the ‘lawful interests’ exception to s 7. The Secretary referred me to the statement of principles of her Honour (at [35]) as follows:

“The following considerations may indicate whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording.

(a) Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose. The contentious subject matter of the conversation, or the characteristics of the person being recorded, may indicate that it was necessary to make the recording in order to secure the admission. Recording a conversation for the purpose of extracting money, inducing further improper conduct or to blackmail the recorded party will indicate to the contrary.

(b) Whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation. This is more likely to be the case where the conversation concerns a serious criminal matter or the principal party has a genuine concern for their safety or that of their children.

(c) Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note.

(d) Whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence and thus, one person’s word against another. Recordings of conversations ‘just in case’ there is a dispute, or for the sake of making an accurate record of what was said, is not enough.”

35. The Secretary distinguished authorities cited by the Father in his submissions as being decisions of the Federal Circuit Court where a recording of a violent incident as between spouses was taken to satisfy the exception of a ‘lawful purpose’, given the recognition that there is unlikely to be a third-party observer to violence within a domestic relationship.

36. Another ‘lawful purpose’ was where it was important to protect oneself from being accused of fabricating a conversation. Counsel argued that this required a genuine concern for safety, but Counsel’s submission was that the conversation with Tim as articulated by the Father failed to fall within that category because the Court not be satisfied that it was the only practical means of refuting an allegation.

37. Counsel submitted that if the Father contended that there was a dispute between himself and Tim (or any other person who he sound recorded) and the point of the sound recording was to make an accurate record of what was said, this would not enough to satisfy a finding that a lawful interest or that it would be reasonably necessary for that evidence of an illegally recorded conversation to be given.

Consideration

38. The parties’ debate in this application arguably gives rise to the following issues:

1. whether this Court, in this appeal, is bound by rules of evidence;

2. whether the impugned evidence is relevant;

3. whether the transcript of the sound recorded evidence contravenes s 7(1) of the SD Act. If so, whether an exception arises under s 7(3)(b);

4. if the intended use of the sound recorded evidence is illegal, whether the desirability of admitting the evidence outweighs the undesirability of admitting illegal evidence.

Rules of evidence

39. On appeals, putting the matter generally, this Court stands in the shoes of a Magistrate of the Children’s Court (s 91(4) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Care Act’)).

40. In proceedings in the Children’s Court, that Court is not bound by rules of evidence (s 93(4), subject to that Court determining that rules of evidence can apply to the whole or part of the evidence).

41. Neither the Secretary nor the Father drew my attention to any part of the transcript in which a Magistrate of the Children’s Court determined whether or not rules of evidence should apply.

42. In my view, however, it is immaterial to decide whether or not the Magistrates who dealt with the issue of the admissibility of any of the sound recorded evidence involving the Father should have considered the issue in accordance with the rules of evidence. That is because this Court is conducting a hearing de novo. Whilst s 91(2) of the Care Act indicates that this Court will proceed on the basis of the evidence that was before the Children’s Court, it can also take into account evidence that was not before the Children’s Court. Conceivably, a situation can arise where this Court, on appeal, can take into account evidence that the Children’s Court excluded, as “additional” evidence.

43. Section 91, by its terms, does not limit this Court to rules of evidence and there is force in a view that, similar to the Children’s Court, this Court is not so bound unless it determines that rules of evidence should apply.

Relevance

44. It is patently clear from the content of his summons, his cross-examination of witnesses called by the DCJ and the snippet I have seen of his evidence, that the Father has a jaundiced view of the caseworkers who have overseen the care of the Child. He thinks that they have not acted fairly or properly towards him and that this has influenced their decisions, adversely to him.

45. Viewed in that light, I think the content of the Father’s conversation with Tim meets the relatively undemanding threshold for relevance, under s 55 of the Evidence Act since if accepted it might tend to show an attitude of unfairness in the approach of at least one DCJ caseworker towards the Father.

Is the evidence illegal?

46. In my view, there would be good reason, and consistent with a policy of coherence, for this Court to determine that the rules of evidence should apply where a party wishes to illegally adduce evidence or, put another way, rely upon evidence that would circumvent the operation of law.

47. If, in short, I was to find that allowing a party to rely upon evidence in a way that was contrary to the law of this State, that would be a good reason to apply rules of evidence (and in particular the Evidence Act) to determine whether the evidence should be admissible.

48. This brings me to the first part of the second issue I have identified. Would the admission of the transcript of the sound recording of the Father’s conversation with Tim contravene an Australian law?

49. It is inarguable that the Father knowingly used a listening device to record a conversation to which he was a party (s 7(1)(b)). I am also satisfied that the conversation with Tim was a private conversation: there is nothing to indicate otherwise than that Tim desired those words only to be listened to by the Father and there is nothing to indicate he expected that they might be overheard by someone else.

50. The next question is whether the exceptions in s 7(3)(a) or (b) applies. Those provisions are alternative exceptions. As to the possibility of an exception arising under s 7(3)(a), I accept the Secretary’s submission that there is nothing to indicate that Tim expressly or impliedly consented to the Father’s use of a listening device to record their conversation.

51. That leaves for consideration the possibility of an exception under s 7(3)(b)(i) (it not being apparent how s 7(3)(b)(ii) could apply). In my opinion, uninstructed by authority, the onus fell upon the Father to prove the facts that suggest that this exception was engaged.

52. With respect, I adopt the statement of principles of Rees J in Rathswohl when deciding that question.

53. As I read paragraph 4 of the affidavit, alongside Annexure ‘A’, it generally concerns an unidentified DCJ caseworker responding to the Mother’s concern stemming from a call that a counsellor, Tim (for whom the Father was a client) made to her. The Mother was apparently concerned at Tim’s conveying to her a representation that the Father was not going to return the Child and Tim had concerns for the Child.

54. It appears that the purpose of the call was for the Father to challenge Tim about what he was reputed to have told the Mother and, indirectly, DCJ about his statement of intentions towards returning the child. The Father emphasises a passage of his conversation with Tim about the latter’s sense that Ms Taylor, one of the DCJ caseworkers, was ‘pushing’ him to confirm that the Child was at risk of the Father. In this way, it appears that the Father wants to prove that Ms Taylor falsely used material from Tim in an adverse fashion to the Father.

55. Applying the principles, I do not see this as a call to extract an admission from Tim (who is not a party nor even a witness to this proceeding), but as evidence that could potentially be used to challenge evidence of the DCJ or Ms Walker in particular. It is not a case of the Father needing the content of the conversation to withstand an assertion that he was fabricating evidence. There is nothing to indicate that the Father could not have taken a handwritten note of the conversation or, better still, to call or subpoena Tim to produce any notes that he took or even to call him as a witness. Such ‘dispute’ as between what Tim told the mother (which was passed on to DCJ) and what Tim told DCJ caseworkers was not ‘serious’ or especially material for this Court’s resolution of the issues.

56. It should be apparent from what I have said that, respectfully, I do not find persuasive arguments by the Father about racism in Australia, or, to the extent that they are made (which was equivocal) assertions about racism of DCJ caseworkers or case managers inherent in any of them, or assertions that through the child protection system, the Father has experienced racial discrimination, are relevant to or alter these conclusions. The Father is not prevented from reprising these arguments in the determination of the appeal proper.

57. I am not persuaded that the Father’s recording of the conversation with Tim was reasonably necessary for the protection of his lawful interests. In other words, the exception in s 7(3)(b)(i) of the SD Act is not established.

58. I conclude therefore that the Father’s recording of his conversation with Tim was illegal.

Should the illegal evidence be admitted under s 138?

59. Once a party opposing evidence proves it is illegally obtained, the onus falls upon the party seeking to rely upon it to establish that the desirability of admitting the evidence outweighs the undesirability of admitting it, given the way that it was obtained (Kadir v The Queen (2020) 94 ALJR 168; [2020] HCA 1 at [47]).

60. Regrettably, little was said by the parties about the application of the factors in the balancing test in s 138(3).

61. I do not regard the evidence as having much probative value. An indication of this was that during his cross-examination of Ms Taylor and Mr Chance (the two people identified in paragraph 4 of the affidavit), the Father did not refer, as a topic for exploration with either of those witnesses, their dealings with Tim and in particular, how the report that they received from the Mother about what Tim had said to her was material to their decision making. It is difficult therefore to draw any adverse inference against those DCJ caseworkers based upon competing accounts of what Tim had told the Mother, what he told DCJ and what he told the Father.

62. Further the part of paragraph 4 that the Father emphasised was a lay opinion of what DCJ was trying to do (pushing for his view about risk of harm), and not a statement of what a DCJ caseworker actually said; and therefore was rather speculative and, on that basis alone, either inadmissible or of low value.

63. For the same reason, the evidence is not that important.

64. As to s 138(3)(c), the proceeding is a child care appeal. There is a welter of evidence (7 volumes of court book). The success of the appeal cannot be said to hinge upon the admissibility of this evidence.

65. As to s 138(3)(d) and (e), I have found that the Father knowingly used the listening device illegally. It is hard to say the extent to which the Father knowingly contravened Australian law. No explanation was offered, however, by the Father, when the opportunity presented itself to him to explain his state of mind, as to why he did not disclose to Tim that he was recording him without his consent. I do not ascribe much weight to these considerations.

66. The considerations in (f) and (g) are in my view neutral.

67. The Father gave no explanation as to how difficult it could be to obtain Tim’s evidence by other (lawful) means. From a distance, it appears that Tim could be said to be in the Father’s camp. Arguably, he was a ‘confidant’ to the Father such that confidence reposed by the Father in Tim could have been waived, for the purposes of s 126C of the Evidence Act. At any rate, the Father’s absence of evidence on this point deprives him of scope to argue that he could not otherwise have obtained Tim’s evidence. This consideration adds weight for why the evidence should not be admitted.

68. I am not persuaded that the desirability of admitting the transcript of the Father’s sound recording of his conversation with Tim outweighs the undesirability of admitting it in the way it was obtained.

69. The evidence in paragraph 4 of the father’s Affidavit and Annexure A to it is inadmissible and therefore rejected. Therefore, the Father’s question to the Mother seeking some kind of response to that evidence is also disallowed.

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Decision last updated: 10 May 2024