FAMILY COURT OF AUSTRALIA

LATHAM & LATHAM	[2008] FamCA 877	

FAMILY LAW – PRACTICE & PROCEDURE – Evidence – Recorded conversations	

Family Law Act 1975 (Cth)	

Sepulveda v R [2006] NSWCCA 379	

APPLICANT:	Ms Latham	

RESPONDENT:	Mr Latham	

Independent children’s lawyer:	Legal Aid Commission	

FILE NUMBER:	SYC	1602		of	2008	

DATE DELIVERED:	23 October 2008	

PLACE DELIVERED:	Sydney	

PLACE HEARD:	Sydney	

JUDGMENT OF:	Le Poer Trench J	

HEARING DATE:	21 October 2008	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Campton	

SOLICITOR FOR THE APPLICANT:	Barkus Edwards Doolan	

COUNSEL FOR THE RESPONDENT:	Mr Foster	

SOLICiTOR FOR THE RESPONDENT:	Hamish Cumming Family Lawyers	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Commission NSW	

Orders
1.	MFI1 is admitted to evidence and marked as Exhibit H1.
2.	The balance of the recordings making up approximately 11 hours are to be produced to the Court and marked for identification as MFI2.
3.	The wife may at any time apply for MFI2 to be admitted as an exhibit in the proceedings.
4.	The parties are to formulate further instruction to Dr W to enable him to complete his report making provision for those matters referred to in these Reasons.
5.	In the event of the parties being unable to agree as to the further instruction to Dr W as required by these orders leave is granted to re-list the matter before me at each party’s risk as to costs.
6.	The husband is to pay the additional cost incurred by Dr W in reinterviewing the parties and considering the material in Exhibit H1 and MFI2.

IT IS NOTED that publication of this judgment under the pseudonym Latham & Latham is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
Family Court of Australia at Sydney	

FILE NUMBER: SYC 1602  of 2008

MS LATHAM 	
Applicant

And

MR LATHAM 	
Respondent

REASONS FOR JUDGMENT
1.	Before the Court is an application by the husband to tender a document which has been marked for identification as MFI1.  The document is a compact disc containing inter alia recordings of conversation between the wife and the children.  It is conceded by the husband that the recordings were made between October and December 2007.  They were made without the knowledge or consent of the wife. The recordings may also include conversations between the husband and the children and between the husband and the wife.
2.	The application to tender the recordings early in the history of the case in the Court arises because the husband provided the recordings to Dr W who has been appointed as the single expert in the case and who is in the process of preparing a report pursuant to a court order requiring same.
3.	Whether the recordings are admitted to evidence or not may impact upon a determination of whether Dr W should continue to be the single expert engaged for the purposes of the preparation of a report.
4.	On 30 September 2008 I delivered a judgment in relation to an application by the mother to be allowed to spend additional time with the child N during the September/October school holiday period.  I determined that application by refusing same.  In the introduction to that judgment I set out some relevant history in relation to the proceedings together with some evidence of the parties. I here incorporate into these reasons that introduction and that reference to the evidence.
5.	Of particular importance are the contents of paragraphs 64 through to 82 of the husband’s Affidavit filed in the Federal Magistrate’s Court on 14 April 2008.  In my earlier judgment I said the following:
	“In paragraphs 64 to 82 of this Affidavit the father sets out evidence alleging statements made by the mother to [the child T].  These statements are extremely abusive and, if correctly reported, would paint the mother as a seriously bad child abuser.”
6.	Based on the submissions made to me in the application currently being considered, I understand that MFI1 includes recordings of some of the behaviour said by the husband to have been exhibited by the mother towards the children and which has been the subject of his evidence in his affidavit filed on 14 April 2008.  It is submitted on behalf of the husband that it is important for the recordings to be received into evidence because they “give colour” and confirm some of the affidavit evidence of the husband above referred to.
7.	Accepting what is submitted by the husband as correct, it seems that MFI1 potentially, contains relevant and important evidence to be considered by the Court.  If admitted to evidence there still repossesses in the Court a discretion as to the weight which ought be given to that evidence.  
8.	Both parties agree that in order to consider whether MFI1 should be admitted to evidence I need to have regard to the Listening Devices Act 1984 (NSW).  Both further direct my attention to s.138 of the Evidence Act 1995.  
9.	The husband concedes that the recordings contained in MFI1 are recordings of private conversations and therefore prima facie in contravention of s.5(1) of the Listening Devices Act.  He submits however that the recordings are admissible by reason of the provisions of s.5(3)(b)(i).  That sub-section provides that the exclusionary provision contained in sub-paragraph (1) of s.5 of the Act does not apply if 
	“(b)	a principal party to the conversation consents to the listening device being so used and:
		(i)	the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party,”
10.	I should at this time refer to the fact that the Listening Devices Act 1984 (NSW) was repealed on 1 August 2008 and replaced by the Surveillance Devices Act 2007 (NSW) which commenced on that same date.  For a variety of reasons both parties agree that it is the Listening Devices Act which has application to the consideration of the issue before me in this application given the timing of the recordings which are contained on MFI1.
11.	The husband submits that he was a principal party to the recorded conversations and the issue for the Court’s determination is whether the exclusionary provisions of s.5(3)(b)(i) apply.  That is, were the recordings “reasonably necessary for the protection of the lawful interests of that principal party”.
12.	The husband referred me to the decision of Sepulveda v R [2006] NSWCCA 379.  This was a decision of the New South Wales Court of Criminal Appeal.  The relevant section was widely canvassed in that decision and the husband has included in his written submissions a quote from paragraph 97 through to paragraph 125 inclusive.
13.	The husband submits based on the principles which emerge from the aforementioned decision that the recordings in MFI1 come within the ambit of s.5(3)(b)(i).  He submits that the recording was “necessary” .  He submits that the word “necessary” as it appears in the section means “appropriate but not essential”.  He submits that it is sufficient that the recording of the conversation is reasonably appropriate (rather than essential) for the protection of the lawful interest of the principal party.  The husband essentially says that the recording was reasonably necessary to protect his lawful interests.  The lawful interests that he relies on include those referred to by Adams J at paragraphs 124 to 126 in the case of R v Lee which was extensively quoted in the decision of Sepluveda v R above referred to.  These include the likelihood that the wife would deny conversations between herself and the children.  The fact that the husband needed to protect himself from the risk of the accusation that he had fabricated the conversations (between the mother and the children) reported in his affidavit.  To avoid being labelled as a liar. 
14.	At the time the recordings were made there is no allegation that the husband was committing any offence outside of an offence defined by the Listening Devices Act.  The husband was entitled to be present at the place where the recordings were made.  The husband was entitled to listen to and participate in the conversation between the mother and the children.  There is no suggestion that he commits any unlawful act by listening to the conversations or indeed repeating them.
15.	The husband submits that because of those matters it was reasonably necessary that the recordings were made.  He further submits that in the context of the husband having parental responsibility for the children and an obligation to protect their interests and his own interests those interests were by definition “lawful interests”.
16.	The husband further submits that if the Court was not satisfied that the provisions of s.5(3)(b)(i) of the Listening Devices Act apply to render the recordings admissible then the Court ought exercise its discretion and admit MFI1 under s.138 of the Evidence Act.  That section provides, inter alia, for discretion to exclude improperly or illegally obtained evidence.  Such evidence “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained”.  Sub-section (3) of s.138 sets out the matters which the Court may take into account in determining whether to exercise the discretion.  These include “the probative value of the evidence, the importance of the evidence, the nature of the evidence, the gravity of the impropriety or contravention and whether the impropriety or contravention was deliberate”.  The Court can also take into account “the difficulty (if any) of obtaining evidence without impropriety or contravention of an Australian law”.
17.	Again the husband refers me to the decision of Sepulveda v R and includes in his written submission an extract of paragraphs 149 and 150.  
18.	The husband contends that the evidence is highly probative being actual recordings of conversations that support the husband’s assertions in relation to the wife’s conduct to the children and in particular to the child T.  It is submitted that the evidence is highly relevant and would touch on one of the matters to be considered by the Court as a mandatory requirement under s.60CC of the Family Law Act.  The proceedings before the Court involve the best interests of the children.  As such all available and relevant evidence should be placed before the Court.
19.	It is submitted that the gravity of the conduct of the husband in recording the conversations should be measured as against the potential harm which could befall the children should the Court be disinclined to accept the husband’s other evidence as to the nature of the relationship between the wife and the children.
20.	The Independent Children’s Lawyer submits that MFI1 should be admitted to evidence.  She submits that in the event of the Court finding that the recordings do not escape the provisions of the Listening Devices Act they should nonetheless be admitted to evidence pursuant to s.138 of the Evidence Act because of the very serious nature of the allegations made by the husband against the wife and detailing aspects of her interaction with the children which, if accurately reported, may lead the Court to conclude that the children are potentially at risk in their mother’s care.
21.	The wife submits that the husband has not established, on the balance of probabilities, the exclusionary provisions applicable to the relevant sections of the Listening Devices Act (1984) NSW nor has he satisfied the requirements of s.138 of the Evidence Act so as to move the Court to accept MFI1 into evidence.  In the alternative the wife submits that the admission of the evidence should be conditional.
22.	In her submissions the wife points to the fact that MFI1 is conceded to be a selected group of recordings of private conversations between the father and the children, between the father and the mother, between the mother and the children.  These recordings were made between October and December 2007.  MFI1 does not contain the totality of the recordings but “snippets”.  It is submitted that the husband undertook secret recordings for the forensic purpose of using them in anticipated parenting proceedings.  She further submits that there are potential defects in the transfer of the recordings from one digital form to another.  MFI1 contains eight tracks that do not represent eight different exchanges but in fact different portions of three exchanges.  The “snippets” contained in the eight tracks do not portray fairly the totality of the conversations that took place.  The wife concedes that the totality of the recordings (11 hours) are available.
23.	It is submitted that there is a further eleven hours of recordings which the husband had conceded are reflective of appropriate parental interaction between the mother and the children.  I note that this concession was not agreed by the husband who submitted that the balance of the eleven hours contained further examples of interaction between the mother and the children which was inappropriate.
24.	The wife submitted that the integrity of the recording process was challenged in so far as the evidence of the husband as to the manner in which the recording took place and the editing took place gave rise to a concern as to the integrity of the recordings on MFI1.
25.	In relation to s.135 and s.138 of the Evidence Act it is submitted by the wife that there would be a significant likelihood that the proposed evidence is “unfairly prejudicial and is misleading”.
26.	It is further submitted on behalf of the wife that if MFI1 is to be admitted to evidence then as a matter of substantive fairness and procedural fairness the entire 11 hours of the recording would need to be in evidence.  It is further submitted that if it is correct, as claimed by the husband, that the relevant content of the recordings is in fact stated in his affidavit material then the tender of MFI1 and any other part of the 11 hours of recording is redundant.
Conclusion
27.	I accept the submissions made on behalf of the husband.  I find that the provisions of s.5(3)(b)(i) have been satisfied and on that basis would admit to evidence MFI1.
28.	Should I be wrong in that determination then I would permit the tender of the evidence pursuant to s.138 of the Evidence Act.  In so doing I am satisfied that the probative value of the evidence is potentially high.  The evidence is potentially important.  The proceedings are children’s proceedings and therefore evidence of the parenting capacity and the nature of the relationships between the parents and the children are important matters in the determination and are matters which the Family Law Act requires to be considered by the Court in the determination of any children’s matter.  The impropriety demonstrated by the husband in the obtaining of the evidence is, in my view, not gross.  The recordings were made in the confines of a family.  Whatever is evidenced by the recordings is not said to have been contrived or manufactured by the husband.  It seems to be accepted that the recordings were made in the process of the ordinary function of this family.  I find that the impropriety or contravention by the husband in making the recordings was a deliberate act and I accept that if the recordings do corroborate some of the matters referred to in the husband’s affidavit material it is highly unlikely that the husband would have been able to obtain the recordings with the knowledge or permission of the wife.
29.	In the result I proposed to admit to evidence MFI1 and mark it as Exhibit H1 in the proceedings.  I require the balance of the recordings to be provided to the Court and marked for identification MFI2.  Should the wife seek to have MFI2 admitted to evidence she has my leave to make application for such course of action at a time convenient to herself and the Court.  I presume that the tender of MFI2 if pressed by the wife will not be opposed by the husband.
30.	Submissions were made by each of the parties addressing any consequential orders which may be required in the event of my acceding to the husband’s application for the tender of MFI1.  It was submitted by the wife that in the event of the admission of the evidence the husband is to provide to Dr W MFI2 so as to enable him to listen, should he so desire, to the whole of the 11 hours of recordings.  It was submitted that the husband should meet the cost of any such exercise.
31.	It was further submitted that the wife should have an opportunity to further attend upon Dr W, again at the husband’s cost, in order to allow her to put into context the circumstances of the recordings.
32.	The wife also seeks that Dr W be invited to comment should he deem it appropriate, in relation to the husband’s behaviour in making the recordings now contained in Exhibit H1.
33.	There were further submissions in relation to the manner in which Dr W was to complete his report.
34.	The husband submitted that in the event of MFI1 being admitted to evidence Dr W should be asked to complete his report.  It was submitted that Dr W should be provided with a transcript of the evidence given by the husband in relation to the manner in which the recordings were made.  Further should Dr W wish to listen to the entirety of the recordings then he should be entitled to do so.  Further it was conceded that Dr W should be asked to consider and report on any matters that he considers appropriate arising out of the making of the recordings and/or the content of the recordings.  The husband opposed the information contained in paragraph 4.4 of the wife’s written submissions being provided to Dr W.
conclusion
35.	I conclude that Dr W should be instructed to forthwith conclude his report.  Each of the parties should be further interviewed by Dr W.  Dr W should be provided with Exhibit H1 and MFI2.  He should be directed to listen to Exhibit H1 (which I understand it is alleged he has already done) and be invited to listen to the contents of MFI2 for as much or as little as he deems appropriate.
36.	Dr W should be asked to set out in his report any conclusions or concerns he might have arising out of the making of the recordings or the content of the recordings.
37.	The additional cost incurred of reinterviewing the parties and the time incurred by Dr W in considering the material in Exhibit H1 and MFI2 should be met by the husband.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench 

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