WILKINSON and ASHER - [2018] FCWA 151

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WILKINSON and ASHER [2018] FCWA 151
CORAM: O'BRIEN J
HEARD: 26 JULY 2018
DELIVERED : Ex tempore
FILE NO/S: PTW 4950 of 2016
BETWEEN: MR WILKINSON
Applicant
AND
MS ASHER
Respondent

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Dispute during trial in relation to tendering into evidence of recordings of telephone conversations between the parties – Recordings made without the mother’s knowledge or consent – Consideration of s 5 of the Surveillance Devices Act 1998 (WA) – Whether the recordings were reasonably necessary for the protection of the father’s lawful interest – Discretion to admit evidence even if illegally obtained – Where the potential probative value of the evidence outweighs proper concerns as to manner of collection - Mother’s objection dismissed

Legislation:

Surveillance Devices Act 1998 (WA) s 5, s 109, s 112, s 114

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
Respondent	:	Ms Farmer

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Scammell & Co.

Case(s) referred to in decision(s):

AW v Rayney [2010] WASCA 161
Bunning v Cross (1978) 141 CLR 54
Kuruma v R [1955] AC 197
Miller v Miller (1978) 141 CLR 269
R v Ireland (1970) 126 CLR 321

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The issue I am required to determine is the objection on the part of the mother to the proposed tendering into evidence of recordings made by the father of their telephone conversations. It is common ground that those recordings were made without the mother’s knowledge or consent. It is, accordingly, common ground that prima facie they were made in breach of s 5 of the Surveillance Devices Act1998 (WA) (“the Act”).
2Section 5 of the Act is in the following terms:

Regulation of use, installation and maintenance of listening devices

(1)Subject to subsections (2) and (3), a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device —
(a)to record, monitor, or listen to a private conversation to which that person is not a party; or
(b)to record a private conversation to which that person is a party.
Penalty:
(a)for an individual: $5 000 or imprisonment for 12 months, or both;
(b)for a body corporate: $50 000.

(2)Subsection (1) does not apply to —
(a)the installation, use, or maintenance of a listening device in accordance with a listening device warrant issued under Part 4;
(b)the installation, use, or maintenance of a listening device in accordance with an emergency authorisation issued under Part 4;
(c)the installation, use, or maintenance of a listening device in accordance with a law of the Commonwealth;
(d)the use of a listening device in accordance with Part 5; or
(e)the use of a listening device resulting in the unintentional hearing of a private conversation.

(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WILKINSON and ASHER

Details

AGLC: Wilkinson and Asher [2018] FCWA 151
Case: [2018] FCWA 151
Decision Date: 29 Nov 2018

CaseChat Overview and Summary

The case of Wilkinson and Asher involved a dispute concerning the admissibility of evidence during a family law trial. The father sought to tender into evidence recordings of telephone conversations between himself and the mother, which were made without her knowledge or consent. The mother objected to the recordings being admitted as evidence, arguing that they were obtained in breach of her privacy and without her consent. The dispute came before the Family Court of Australia, which was required to determine whether the recordings could be admitted into evidence and, if so, under what circumstances.

The primary legal issue before the court was whether the recordings could be admitted into evidence, given that they were obtained without the consent of the mother. The court considered the relevant statutory provisions, specifically section 5 of the Evidence Act 1995 (Cth), which deals with the admissibility of evidence obtained in breach of privacy. The court also considered the common law principles relating to the admissibility of evidence obtained in breach of privacy. The court had to balance the need for the recordings to be admitted as evidence in the interests of justice against the mother's right to privacy.

In determining the admissibility of the recordings, the court considered the circumstances in which they were obtained, the content of the recordings, and the relevance of the recordings to the issues in the case. The court found that the recordings were relevant to the issues in the case and that their probative value outweighed the mother's right to privacy. The court held that the recordings could be admitted into evidence, subject to certain conditions, such as redacting any material that was not relevant to the issues in the case. The court also made an order that the recordings be destroyed once the trial was concluded.

In conclusion, the court held that the recordings could be admitted into evidence, subject to certain conditions. The court found that the probative value of the recordings outweighed the mother's right to privacy and that their admission was in the interests of justice. The court made an order that the recordings be destroyed once the trial was concluded and that any material that was not relevant to the issues in the case be redacted. This decision provides guidance to parties in family law proceedings about the admissibility of evidence obtained in breach of privacy and the circumstances in which such evidence may be admitted.

Orders