WILLIAMS and OAMRA - [2020] FCWA 62

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WILLIAMS and OAMRA [2020] FCWA 62
CORAM: O'BRIEN J
HEARD: 15 APRIL 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 7613 of 2017
BETWEEN: MR WILLIAMS
Applicant
AND
MS OAMRA
Respondent

Catchwords:

EVIDENCE – objection to tender of audio recordings and transcript where recordings were obtained without the express consent of one of the principal parties to a private conversation – consideration of circumstances in which relevant consent might be implied – where in the present case consent cannot be implied – where it is not established that the recording was reasonably necessary for the protection of the lawful interests of the party who made it – where evidence was illegally obtained – where the evidence is not of probative value sufficient to overcome the reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means – objection upheld.

Legislation:

Evidence Act 1906 (WA)
Family Law Act 1975 (Cth)
Surveillance Devices Act 1998 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
Respondent	:	Mr Hooper SC

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Fahey Mwenda D'Adamo Legal

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

AW v Rayney [2010] WASCA 161
Bunning v Cross (1978) 141 CLR 54
Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72
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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Williams and Oamra has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1Counsel for the husband proposes to put to the wife in cross examination, and tender into evidence, transcripts of recordings made by the husband of conversations between the parties. The transcripts in question are identified by the parties as being recording number 38, made on 3 September 2016, and recording number 83 made on 24 July 2016. The transcript of recording number 38, albeit it is said with some discrepancies, appears also at paragraph 234 of the husband’s trial affidavit filed on 9 November 2018, to which objection was earlier taken. That objection was maintained, but its determination was not pressed at an earlier stage in the trial as it was perceived that the evidence in question was primarily relied upon in relation to the parenting case, which was concluded by the making of consent orders. It is now clear that the husband also seeks to rely on the two recordings in question in relation to the financial case.
2The wife objects to the proposed tender, contending that the recordings were made in breach of the Surveillance Devices Act 1998 (WA) (“the Act”). She says that, the recordings having been made illegally, the court should decline to exercise its discretion to nevertheless admit them into evidence. She…

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 WILLIAMS and OAMRA

Details

AGLC: WILLIAMS and OAMRA [2020] FCWA 62
Case: [2020] FCWA 62
Decision Date: 17 APRIL 2020

CaseChat Overview and Summary

Williams and Oamra were parties in a legal dispute that reached the court. The nature of the disagreement involved the admissibility of certain audio recordings and their transcripts, which were obtained without the express consent of one of the principal parties to a private conversation. The court was required to determine the legal issues surrounding the circumstances under which consent to such recordings might be implied, the necessity of the recordings for the protection of lawful interests, and the admissibility of evidence obtained illegally.

The court examined the circumstances in which consent to recording a private conversation might be implied and concluded that, in this instance, such consent could not be implied. Furthermore, it was not established that the recordings were reasonably necessary for the protection of the lawful interests of the party who made them. The court found that the evidence was obtained illegally and held that it did not possess sufficient probative value to overcome the court's reluctance to encourage or tacitly approve of the gathering of evidence by illegal means. Consequently, the objection to the tender of the audio recordings and their transcripts was upheld.

The court's reasoning led to the conclusion that the evidence in question was inadmissible. The court's decision was grounded in the need to uphold the integrity of the legal process and to deter the use of illegal means to gather evidence. The court's ruling effectively barred the use of the audio recordings and their transcripts as evidence in the case, reinforcing the importance of obtaining consent and adhering to lawful methods of evidence collection.

Orders