Warnell and Allenby and Anor

[2020] FCCA 2517

FEDERAL CIRCUIT COURT OF AUSTRALIA

WARNELL & ALLENBY & ANOR [2020] FCCA 2517

Catchwords:
FAMILY LAW – Parenting – interim hearing – application to exclude evidence – video recording of an altercation between the mother and the father taken by the father’s 14 year old child – whether the recording was illegally obtained – whether the altercation between the father and the mother was a “private conversation” – whether the probative value of the recording is outweighed – video recording admitted into evidence.

Legislation:

Evidence Act 1995 (Cth), ss.135, 138

Listening and Surveillance Devices Act 1972 (SA), s.3

Surveillance Devices Act 2016 (SA), ss.3(1), 4(1)

Cases cited:

Coulter & Coulter (No.2) [2019] FCCA 1290

Applicant: MS WARNELL

First Respondent: MR ALLENBY

Second Respondent: MS MAXWELL

File Number: ADC 3236 of 2020

Judgment of: Judge Kari

Hearing date: 27 August 2020

Date of Last Submission: 27 August 2020

Delivered at: Adelaide

Delivered on: 9 September 2020

REPRESENTATION

Counsel for the Applicant: Ms Boyle

Solicitors for the Applicant: Fne Lawyers

Counsel for the First Respondent: Mr Roberts

Solicitors for the First Respondent: Lachlan Mcauliffe Barrister & Solicitor

No appearance on behalf of the Second Respondent

ORDERS

1. That the oral application by the mother to exclude the video recording taken on 27 June 2020 be dismissed.

2. That within 7 days, the father file and serve an Affidavit annexing a USB containing a copy of the video recording taken by the father’s child B on 27 June 2020.

3. That the proceedings be listed for interim hearing at 2:30pm on 16 September 2020 (1.5 hours allowed), with such hearing to be conducted by Microsoft Teams.

IT IS NOTED that publication of this judgment under the pseudonym Warnell & Allenby & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3236 of 2020

MS WARNELL

Applicant

And

MR ALLENBY

First Respondent

And

MS MAXWELL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the infant child X who was born in 2019 and is 14 months old.

2. The parenting arrangements for X are the subject of dispute, with urgent proceedings having been commenced by the mother on 19 July 2020.

3. While the interim arrangements for X are very much live and will require urgent consideration, a preliminary issue has arisen with respect to evidence that the father wishes to rely upon for the purposes of that hearing.

Brief background

1. The brief background of these parties and what has led them to these proceedings is set out hereunder.

2. The father was born in 1968 and he is 52 years of age and he is an Australian citizen.

3. The mother was born in 1992 and she is 28 years of age. The mother is not an Australian citizen, she was born in Country C and she is currently in Australia as a result of a temporary visa.

4. The parents are not married.

5. The father is married to a woman known as “Ms D”. That marriage took place in 2017.

6. The father has three children from previous relationships, Ms E who is 30 years of age, Mr F who is 25 years of age and B who is 14 years of age. The child B is wheelchair bound and he resides with the father.

7. The parents met in Country G some time in approximately 2015 when the father was undertaking work there on a fly-in-fly-out (FIFO) basis between Country G and his home in Town H, South Australia. Since meeting the mother, the father has worked in both Country G and Country J on a FIFO basis and the mother has travelled between her home in Country C and each of those locations to connect with the father.

8. While there is a dispute between the parents as to the nature of their relationship and whether they ever cohabited, they appear to agree that they had a sexual relationship when they were in contact.

9. The child X was born in Country J in 2019. X became an Australian citizen by descent in 2019.

10. X was born with significant health complications, and in particular he suffers from a medical disorder.

11. The parents agree that they made a decision that X should receive medical treatment for his condition in Australia. I understand that as a consequence of that decision the mother was able to obtain a temporary visa to travel to Australia with X.

12. The parents and X arrived in Australia on or about early 2020. On arriving in Australia, the father resumed living with his wife and he made arrangements for the mother and the child to live in the home of the paternal grandmother, which is not far from his home. The father otherwise continued working on a FIFO basis after the mother and the child arrived in Australia.

13. X was scheduled to have surgery on or about March 2020, however as a result of the COVID-19 pandemic that surgery was cancelled and is yet to be rescheduled.

14. As best as I understand, the parents have mostly navigated arrangements for the father to spend time with X without any significant incident. Albeit that the father makes allegations that the mother was abusing alcohol daily, that she has anger management issues, that she was physically violent with X and that she was unable to properly supervise him. While the mother makes allegations that Ms D was physically, verbally and racially abusive towards her and that the father did not intervene.

15. Matters came to a head however on 27 June 2020, when the mother alleges that the father attended her residence and “kidnaped” X. In particular the mother asserts:

    a)The father attended the home in the presence of his 14 year old child B and a friend called Mr K.

    b)The father made threats to kill the mother, and physically assaulted her, including pulling her hair and placing his hand over her mouth so that she had difficulty breathing.

    c)The father and Mr K removed X by force.

    d)Mr K was in possession of a taser during the altercation and waved it at the mother repeatedly in an attempt to taser her.

    e)She picked up an empty bottle and attempted to ward the father and Mr K away.

    f)The paternal grandmother telephoned the police who attended but then left the residence without speaking with the mother.

    g)The police subsequently returned to the residence and the mother was charged with aggravated assault, and an interim intervention order was made.

    h)As a consequence of the criminal charges and the intervention order the mother is no longer permitted to reside at the home of the paternal grandmother.

16. The mother denies that she assaulted the father. Rather she asserts that the incident was pre-meditated on the father’s part so that he could assume primary care of X.

17. The father’s version of what took place on 27 June 2020 is that:

    a)He had pre-arranged with the mother to collect X that day so that he could take him to the home of his adult daughter Ms E for a visit.

    b)When he arrived to collect X the mother was feeding him, and he took over this task and then cleaned and changed X as he had a bowel movement.

    c)While he was holding X the mother became angry and accused the father of “taking X away”.

    d)The mother then became physical with the father while he was holding X and attempted to aggressively remove him from the father’s arms, ultimately biting the father’s hand causing a cut.

    e)The mother grabbed a glass brandy bottle and swung it at the father attempting to hit him.

    f)As the father attempted to get away from the mother while still holding X, the mother grabbed the father from behind and swung at him, with her arm and hand hitting X to the face and arm.

18. The father acknowledges that the police attended the residence and that he took X to the hospital for examination. X is said to have been observed at the hospital with a mark on his face and significant nappy rash.

19. I understand from the father that the mother was charged with two counts of aggravated assault and that he and the child are named as the protected persons on the Intervention Order.

20. The father otherwise denies that he assaulted the mother at any stage.

The evidence in dispute

1. The evidence that the father wishes to rely on is a video recording of the events that unfolded on 27 June 2020.

2. The video recording has not been received by the Court and I have not seen it. The father has (through an annexure to an affidavit filed by his solicitor) produced two still images from the video recording. The objection has ultimately arisen as I indicated to the parties that if there was no objection, my preference would be that the video be received and not just the still images.

3. At the time that those issues were traversed by the Court with the parties, the mother and her legal representatives had not had the opportunity to view the video recording from which the still images had been taken. As a result the hearing was adjourned for 13 days to enable that to occur and to afford the mother the opportunity to take advice and consider her position. Having done so the mother has now objected to the Court receiving the video recording.

4. So far as the recording is concerned the parties agree:

   a)The recording was taken by the father’s 14 year old child B on his mobile telephone during the altercation.

   b)The recording is of approximately 2.28 minutes.

5. The parties do not agree as to whether the recording is of the entire incident or just a portion of the incident. The mother alleges that the recording is only a portion of the latter stages of the events that unfolded on 27 June 2020. It is not clear to me what the father’s position is on this topic.

6. It does not appear that the mother (through her solicitors), or the father have made any enquiries as to whether the recording is complete, nor whether there were any additional recordings on B’s mobile phone from that day.

7. The father asserts that the recording was made available to him by the police who confiscated B’s mobile telephone and retrieved the recording.

8. The mother asserts that she was not aware that the recording is said to form part of the police brief of evidence and she asserts that it has not been made available to her through the criminal proceedings.

The basis of the mother’s objection

1. The mother pursues an objection relying on s 138 of the Evidence Act 1995 (Cth) (‘Evidence Act’), which under the heading “Discretion to exclude improperly or illegally obtained evidence” provides as follows:

   (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.

   …

   (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.”

2. The mother asserts that the recording made by the child B was illegally obtained as it was a “private conversation” with reference to the Surveillance Devices Act 2016 (SA) and in particular s 4(1), which provides:

   (1)Subject to this section and section 6, 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 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:

   (a)In the case of a body corporate - $75 000;

   (b)In the case of a natural person - $15 000 or imprisonment for 3 years

3. The balance of the section goes on to provide exceptions to when the use of a listening device is permissible. As will become clear later in these reasons, it is not necessary for me to traverse these exceptions.

4. A “listening device” is defined in s 3(1), of the Surveillance Devices Act:

   (a)A device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as some other kind of surveillance device); and

   (b)Associated equipment (if any).

5. There does not appear to be any dispute that the mobile telephone used to record the incident falls within the definition of a “listening device”.

6. The mother’s counsel referred the Court to the decision of Judge Heffernan in Coulter & Coulter (No. 2) [2019] FCCA 1290 (‘Coulter’), and in particular his Honour’s discussion of a “private conversation” at paragraphs 17 of the decision.

7. The mother asserts that the conversation between the father and the mother was a “private conversation” and not a “public one”, in circumstances where:

   a)The conversation took place in the privacy of the residence at which the mother was then residing; and

   b)The mother had not consented to the recording.

8. However in Coulter, His Honour was considering the question of a private conversation in the context of the Listening and Surveillance Devices Act 1972 (SA), which has since been repealed and replaced with the Surveillance Devices Act 2016 (SA).

9. An important distinction between the Listening and Surveillance Devices Act 1972 (SA) and the applicable Surveillance Devices Act 2016 (SA), is found in the definition of a “private conversation”, with the 2016 legislation providing a significant limitation on the definition.

   a)At s 3 of the Listening and Surveillance Devices Act 1972 (SA), a private conversation is defined as:

   “private conversation” means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation”

   b)Whereas at s 3(1) the Surveillance Devices Act 2016 (SA) the definition has a limitation placed on it as follows:

   “a conversation carried on in circumstances that may reasonably be taken to indicate that at least 1 party to the conversation desires it to be heard only by the other parties to the conversation (but does not include a conversation made in circumstances in which all parties to the conversation ought reasonably expect that it may be heard by a person who is not a party to the conversation)” (my emphasis).

10. In light of the limitation placed on the definition of a private conversation on the applicable legislation, I have difficulty with the submissions made on behalf of the mother taking into account:

    a)the conversation between the mother and the father was one which took place on her own version of events in the presence of the child B (who took the recording), Mr K, who was said to be involved in the altercation and possibly the paternal grandmother, who the mother deposes called the police; and

    b)both parents knew that a range of people beyond each of them was present during their conversation and the ensuing fracas, which necessarily must result in each the mother and the father having a reasonable expectation that someone other than the father or the mother (who were the parties to the conversation) might have heard it.

11. As a consequence of this finding, I do not agree with the mother that the recording was illegally taken by the child B.

12. The mother did not otherwise frame her objection to the evidence as being something which the Court generally has the discretion to exclude with reference to s 135 of the Evidence Act, as considered by Judge Heffernan in Coulter. However I propose to consider s 135 in light of the submissions made on behalf of the mother addressing the prospect that the Court may choose to exercise discretion to admit illegally obtained material (if that finding had been made).

13. Section 135 of the Evidence Act provides:

    “The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

    (a)Be unfairly prejudicial to a party; or

    (b)Be misleading or confusing; or

    (c)Cause or result in undue waste of time.”

14. From the mother’s perspective an acknowledgement was made that the recording has probative value given it was a recording of an altercation between the parents in the presence of the child and resulting in not only the mother facing charges of aggravated assault but also an intervention order.

15. The mother however asserts effectively that the probative value is outweighed because it is only a partial recording of the incident and the father is not on oath as to the motivations for the recording; which I would have to assume fits within subsection (a) and (b) of s 135 of the Evidence Act.

16. Again however, I have difficulty with this submission in circumstances where:

    a)The mother has not made any enquiries as to whether additional recordings exist from that day;

    b)The mother is not on oath as to those matters that she asserts the recording does not include and it is not clear to me because I have not seen the recording what portion of the incident is contained in the recording;

    c)The recording was taken by a bystander who is a child and not otherwise able to give evidence in this Court as to what motivated him to take the recording and at what point he started to make the recording; and

    d)The existence of the recording is said to form part of the police brief of evidence in the criminal proceedings.

17. For all of those reasons, I dismiss the mother’s objection and make those orders that appear at the commencement of these reasons.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate: 

Date: 9 September 2020