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 argues that they are of no probative value in any event.

3While there was initially a dispute between the parties as to whether I should review the transcripts to inform my consideration of their probative value or otherwise, senior counsel for the wife conceded during the course of submissions that I should. The transcripts of the recordings in question were accordingly tendered by consent for that purpose only.

4Counsel for the husband sought that I also listen to the audio recordings so as to properly appreciate their potential probative value; I initially declined to do so until I had read the transcripts. Having read the transcripts, I consider it unnecessary to listen to the audio recordings for reasons which will become clear.

5The issues for determination in dealing with the wife’s objection are, therefore:

(a)whether the recordings were made in breach of the Act;

(b)if not, whether they should be admitted into evidence notwithstanding issues the wife would raise as to the timeliness of their disclosure, and the adequacy of that disclosure in circumstances where something in excess of 800 recordings were apparently made and the wife would contend that she could not reasonably have been expected to instruct her solicitors to review all of them; and

(c)if the recordings were made in breach of the Act, whether I should nevertheless exercise my discretion to admit them into evidence.

The legislation

6The definitions in the Act, relevantly for present purposes, make it clear that the term “record” in relation to a private conversation includes a statement prepared from such a record, thereby capturing the transcripts. Notwithstanding references in the legislation to “surveillance devices” and “listening devices”, the definition of “listening device” includes any device capable of being used to record a private conversation, thereby capturing the recording by the husband via an app on his phone. The Act precludes recording of private conversations other than in certain defined circumstances.

7The relevant portions of Section 5 of the Act are 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.

…

(3)Subsection (1)(b) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if —

…

(c)each principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance; or

(d)a principal party to the private conversation consents expressly or impliedly to that installation, use, or maintenance and the installation, use, or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.

8Counsel for the husband conceded that the conversations recorded were “private conversations” for the purposes of the Act. He conceded further that they were recorded without the express consent of the wife.

9He contended, however, that the exception in s 5(3)(c) was met in that the wife had impliedly consented to the recordings. He contended further that the exception in s 5(3)(d) was met, as the husband had clearly consented to the recordings and they were reasonably necessary for the protection of his lawful interests.

The question of implied consent.

10I turn first to the question of whether the evidence supports a finding that the wife’s consent to the recordings may be implied.

11Counsel for the husband pointed to parts of the wife’s affidavit which might be interpreted to mean that at about the time certain recordings were made she knew that the husband would then retreat to his room and replay them, sometimes loud enough for the children to hear. He suggests that accordingly the wife was at some unspecified time aware that the husband was in the habit of making recordings and that by virtue of that knowledge, and a failure on her part to actively object to further recordings, it may be implied that she consented to those further recordings.

12At paragraph 105 of her trial affidavit, the wife says:

“[Mr Williams] has a number of unique idiosyncrasies. He often talked to himself, recorded the children and/or me then went to his room and listened to the recordings (often loudly so the children could hear them)”.

13Counsel for the husband points to that paragraph as an acknowledgement by the wife of her knowledge of recordings being made.

14That said, at paragraph 100 of her trial affidavit the wife expressly says: “[Mr Williams] has in excess of 800 recordings of me made without my knowledge or consent”.

15Counsel for the husband pointed also to paragraph 24 of the report of Dr A dated 3 September 2018 in which he said the following:

“I made a point of not listening to any recordings, particularly given that the father said that many of the recordings were taken without the mother’s notice [sic]. He explained the recordings as wanting to understand what was going on in the relationship. He said that he would record it and [then] played back to himself. When I mentioned to the mother that the father had recordings, she indicated that they had become aware of recordings because after arguments, sometimes the children would hear the argument being replayed in [Mr Williams’] bedroom when he was playing it back. They could only account for it by the fact he must’ve recorded things”.

16The interviews with the parties upon which that report was based took place on 14 August 2018 (for the husband) and 21 August 2018 (for the wife).

17In her oral evidence, the wife has clearly stated that she was not aware of the recordings until she was told of them by one of the children following the date on which the parties ceased living together under one roof. The recordings in question were, of course, taken some considerable time earlier.

18While it is apparently common ground that the husband made the recordings on his mobile telephone, there is no evidence from him as to the manner in which he did so or, more particularly, whether he did so in a manner that would make the fact of the recording obvious to the wife. At paragraph 233 of his trial affidavit he simply said:

“In the latter years of the relationship I had taken to recording our interactions on a lot of occasions as I was concerned not only that [the wife] had threatened me but that she would make false accusations against me and that I sometimes did wonder whether I had really heard what she was seeing [sic] correctly. I was concerned that she would repeat the type of allegations against me to third parties”.

“On one occasion I heard her being abusive about my family and so I started recording her very unpleasant comments”.

19In my view, the absence of more specific evidence as to the circumstances in which the relevant recordings were made weighs against any finding that the consent of the wife to the recordings may be implied.

20Counsel for the husband referred, albeit in a different context, to a decision by Allanson J in the Supreme Court of Western Australia in Georgiou Building Pty Ltd v Perrinepod Pty Ltd (“Georgiou”).[1] In that matter, a director of the defendant company recorded two business meetings between himself and representatives of the plaintiff, saying later that it was his usual practice to record important meetings. The representatives of the plaintiff who attended the relevant meetings swore affidavits saying they did not give their consent to the recordings being made, and that they were unaware that it was being done. The person who made the recordings said that he had done so by openly placing his mobile telephone on the table around which the parties were meeting. That was not held sufficient by his Honour to imply consent by the plaintiff in that case.

[1] [2012] WASC 72.

21In the present case, the most that can be said is that on the husband’s case the wife knew that he recorded some of their conversations, and thereby it may be implied by virtue of her continuing to have conversations with him without expressly seeking an assurance that they would not be recorded, that she consented to their recording.

22There are a number of difficulties with that proposition.

23Firstly, there is nothing to indicate that the wife was aware that the specific conversations in question were being recorded. Put another way, there is nothing relevant to a consideration of those specific conversations to contradict her clear evidence that she was unaware of any recordings being made until after the event.

24In my view, consent to a recording may potentially be implied where the evidence establishes that the party whose consent is in question is clearly aware that a recording is being made, and raises no objection. Even then, that awareness is not of itself enough to imply consent; for example, it might be established that the party in question was not aware of any right to object, or that his or her will was overborne.

25Such an implication might also potentially be open in circumstances where it is firmly established that there was a clear and consistent pattern of recording conversations, that the party not carrying out the recordings knew that and accordingly ought reasonably to have confidently anticipated that subsequent conversations would be recorded, and raised no objection, such that the person making the recordings might reasonably assume consent. The evidence falls well short of that in this case.

26It goes too far to suggest that an awareness by a party that the other party recorded some conversations, even many conversations, will without more support a conclusion of implied consent to the recording of other conversations.

27In my view, nothing turns on a determination of the factual dispute between the parties as to when the wife became aware that the husband had taken recordings. That is so as the husband’s case on the relevant point, even taken at its highest, could not in my view support a conclusion that the wife’s consent to the recording of subsequent conversations can be implied. I reject any suggestion that the facts of this case support a conclusion that the wife’s consent can be so implied.

The protection of lawful interests.

28The next question is whether the recordings fall within the exception in s 5(3)(d) of the Act – as being made with the consent of one of the principal parties to the conversation, the husband, and being reasonably necessary for the protection of his lawful interests.

29Again, counsel for the husband referred to the decision of Allanson J in Georgiou.[2]

[2] Ibid.

30In that case, his Honour concluded, with respect accurately, that the word “necessary” is capable of a wide range of meanings, and in the context of s 5, particularly when qualified by the word “reasonably” it should be construed as meaning “appropriate” but not “essential or unavoidable”. His Honour correctly observed that the word “reasonably” imports an objective test, and that whether the use of the device is reasonably necessary is to be judged on the circumstances that existed at the time of the use. The word “protection” has its ordinary meaning, and his Honour noted further that “lawful interests” may be distinguished from “legal interests” – a recording made where a serious dispute has erupted and there will be a dispute as to different versions of an arrangement may give rise to a lawful interest. Again, a finding will generally depend on the circumstances of the particular case.

31The Court of Appeal considered the operation of s 5(3)(d) in AW v Rayney (“Rayney”).[3] The decision of Allanson J in Giorgiou drew extensively from the same authorities reviewed by the Court of Appeal in Rayney.

[3] [2010] WASCA 161.

32In that judgment McLure P said the following about the exception referred to:

“Whether the use of a listening device is reasonably necessary is to be judged on the circumstances that existed at the time of its use. It is contended on behalf of Mr Rayney that the content of what is recorded is not relevant to an assessment of what is reasonably necessary because the content is not disclosed until after the decision to use the listening device and the implementation of that decision. The contention is too broadly stated. Previous dealings and contact are likely to inform an assessment as to likely topics. Moreover, any intended ‘positioning’ by the party using the listening device can come as no surprise”.[4]

[4] Ibid, [59].

33Buss JA expressed in more detail the relevant test.[5] McLure P expressed her agreement with his Honour’s analysis.

[5] Ibid, [257].

34His Honour summarised the relevant principles as follows:

a)the word “necessary” connotes, in the context of section 5, appropriate or adapted rather than essential or indispensable;

b)the word “reasonably” imports an objective test – that is, the use of the listening device must, objectively, be reasonably appropriate or adapted;

c)the determination of whether something is reasonably necessary involves the exercise of judgemental evaluation;

d)the determination of whether the use of the listening device is reasonably necessary is to be undertaken by reference to the facts and circumstances existing at the time of the recording;

e)the word “protection” in the context of section 5 connotes defending, preserving or safeguarding the lawful interests of the principal party in question; and

f)what constitutes a person’s lawful interests must be ascertained from the facts and circumstances of the particular case, but it may be said generally that “lawful” connotes a right or interest which is not contrary to statute or general law.

35The first question is just what lawful interests the husband would say he was seeking to protect.

36Counsel for the husband answered that question by reference to the husband seeking to:

(a)protect his interest as a father to engage with his children;

(b)his financial interests in responding to argument on behalf of the wife that no order for alteration of existing property interests between these two parties is just and equitable;

(c)to avoid false accusations as to his personal conduct; and

(d)protect his position in the event that a separation occurred.

37That submission must be considered in the context of the husband’s own affidavit evidence already referred to, including his reference to recording the wife’s unpleasant comments after he heard her being abusive about his family. It must also be considered in the context of the husband’s own assertions in recording number 83 in particular to the effect that he still wanted to try to maintain the marriage, notwithstanding the wife’s clear position to the contrary.

38Having concluded that the recordings were made without the express or implied consent of the wife, it is for the husband to satisfy me on the balance of probabilities that the exception in s 5(3)(d) is made out. He has not done so.

39The tenor of the conversations recorded is that of heated arguments, laced with abuse. They make clear the wife’s general dissatisfaction with the relationship, and the disdain with which she regarded the husband. They also demonstrate the husband’s defence of his own position in response to those complaints. There is nothing in either conversation to suggest that their recording was reasonably necessary to protect the husband’s lawful interests, even considered retrospectively. There is certainly nothing to support the proposition that in the circumstances that existed at the time the recordings were made that conclusion could be reached, notwithstanding previous dealings and contact between the parties and the fractious nature of their relationship at the relevant time.

40On those bases, I am not, on the materials before me, presently satisfied that the exception raised in s 5(3)(d) of the Act has been made out.

41It follows that in my view the recordings were made illegally. That, of course, is not the end of the matter for present purposes.

The admissibility of the material.

42The provisions of the Evidence Act1906 (WA) (“the Evidence Act”) contain no express provision making illegally obtained evidence inadmissible simply by virtue of it having been obtained illegally.

43Indeed, s 112 of the Evidence Act provides that s 109 to s 114 do not affect the power of a court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against the accused. Implicit in that is the proposition that the evidence is not, in those circumstances, inadmissible merely because it was illegally obtained.

44As the High Court has made clear it is a matter of discretion as to whether evidence obtained illegally is to be nevertheless admitted.[6] That involves a weighing up of the probative value of the evidence in determining the matters in issue in the proceedings against the negative aspect of the method by which it was obtained and the reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means.

[6] R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.

45Counsel for the husband, in my view properly, conceded that if I concluded that the recordings were made illegally the onus would be on him to persuade me that the evidence should nevertheless be admitted.

46He argued that the recordings gave some insight into the knowledge held by the wife of the husband’s finances, in circumstances where a central tenet of the wife’s substantive case is that the parties at no stage intertwined their finances, and that they did so by mutual decision. He pointed to various statements by the wife to the effect that she knew nothing about the husband’s finances.

47The recordings do not, in my view, have any probative value in relation to that issue. That is so as there is ample evidence before the court as to the wife’s knowledge of certain aspects at least of the husband’s financial circumstances; her communications to him in relation to the use of funds in an offset account and her dismay at his rental properties being vacant spring to mind as but one example.

48Counsel for the husband also argues that the recordings go some way to support the proposition that the husband was overborne by the wife in relation to financial matters. I do not accept that submission. The recordings were made in mid-2016. The decisions that were made as to the acquisition of property in particular were made many years earlier. Verbal abuse by the wife in 2016, in circumstances where on her case she had regarded the marriage as over for some considerable time and had repeatedly asked the husband to leave what she described as her house, only to meet his consistent refusal, does not in my view inform a consideration of the circumstances in which decisions were made years earlier.

49Even if I am wrong in that conclusion, there is already ample evidence before the court as to the content and tone of communications between the parties during their relationship and cohabitation, regardless of where the line might be drawn as to when they became separated under one roof.

50Counsel also suggested that the conversations had some potential probative value in relation to the wife’s credibility in the giving of her evidence regarding both financial and parenting matters, and as to contributions made by the husband as a homemaker and parent by reference to comments she made in that regard. While it might be arguable that there is some probative value as described, in my view it is minimal at best. It is clearly insufficient to overcome the proper reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means.

51Having concluded on the balance of probabilities that the evidence was obtained illegally, I am not persuaded to exercise my discretion to nevertheless admit it. Recordings 38 and 83, and the transcripts of them, will not be admitted into evidence. For the sake of completion, paragraph 234 of the husband’s trial affidavit sworn on 9 November 2018 will be struck out.

52Those conclusions having been reached, it is unnecessary to consider further the submissions made by senior counsel for the wife as to the timeliness and manner of the disclosure of the relevant recordings and transcripts.

These reasons are the reasons for decision delivered on 15 April 2020, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

17 APRIL 2020