Court allows use of Audio Recordings to try to prove De Facto Relationship existed

She’s 33, He’s 77.  He says 15 month sexual relationship.  She says it was a De Facto Relationship. They have a 3 year old child.  

She records discussions without his knowledge.  He says they were illegally obtained and so cannot be used.

Court rules audio recordings of discussions are admissible and can be used as evidence.

Judge notes it is a… he says, she says case, so how else might she be able to prove her case.

NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Jasper & Corrigan (No.2) [2017] FCCA 1467 (23 June 2017)

Last Updated: 10 July 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The requirement for compliance with Part 25A of the Federal Circuit Court Rules 2001 (Cth) be dispensed with insofar as there has been no compliance.
(2) Within 14 days the Applicant is to provide to the Respondent’s solicitor in electronic form audio recordings of no more than 6 conversations that she asserts are relevant to the issue of the nature of the relationship between the parties.
(3) Within 14 days the Applicant is to file and serve an affidavit in which she sets out:

(a) The factual context of the making of the audio recordings referred to above;

(b) The date and time of such recordings; and

(c) Attaches a transcript of the same recordings.

(4) The Applicant be granted a certificate under s.128 of the Evidence Act 1995 (Cth) in relation to the evidence that is referred to in order 3 above.
(5) The costs of both parties for the dates of 22 & 23 June 2017 be reserved.
(6) The matter be adjourned to 12 & 13 September 2017 at 10.00am for Final Hearing (part heard).
(7) The Respondent is to file and serve within 28 days an affidavit addressing contentions made by the Applicant.

IT IS NOTED that publication of this judgment under the pseudonym Jasper & Corrigan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

WOC 732 of 2015

Applicant

And

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Applicant is 33 years old. The Respondent is 77 years old. They have a 3 year old daughter. The Applicant contends that they were in a de-facto relationship, the Respondent only concedes that there was a sexual relationship between October 2012 and January 2014.
2. I provide the following ex tempore reasons. During the course of a hearing that is for present purposes an application under section 90RD of the Family Law Act 1975, I am asked to adjudicate on the admissibility of certain evidence. The substantive issue before the Court on the section 90RD application is whether there was a de facto relationship between the Applicant and the Respondent as defined in section 4AA of the Family Law Act 1975.
3. The issue is both a factual one as well as a legal one. The Applicant’s evidence about these issues is expansive. The Respondent denies the existence of any such relationship other than conceding that there was a sexual relationship between them. The Applicant in her evidence relies on, firstly, actions, that is to say, what she did and what she says he did. She relies on words that were said, that is to say, words that she says she said and words that she says he said. Her evidence also relies on inference from asserted facts. There is a clear factual discrepancy which the Court must adjudicate on.
4. The Applicant has on very late notice indicated that she has evidence by way of audio recordings of conversations between herself and the Respondent that she says are germane to the issues before the Court. This evidence is not before the Court at the moment, it is not in-chief in the sense that the fact of these recordings or their content are set out in affidavits.
5. It seems, doing the best the Court can, to be that the Applicant intended to use this material in cross-examination. On ascertaining that this was an issue, the Court decided that the question of admissibility ought to be dealt with now, that is to say, it ought to be crystallised, and indeed, before the Applicant was cross-examined, if that was at all possible.
6. The Respondent contends, and indeed there is no dispute about this, that these recordings were obtained without his knowledge. He contends that they are illegally obtained and therefore should not be admitted. The Applicant contends that the audio recordings fall within an exception to the relevant legislation and therefore not illegally obtained.
7. The Court must decide this issue as well as a number of consequential issues under the Evidence Act, and, for example, Counsel for the Respondent specifically directed the Court to section 138 of the Evidence Act, but in these reasons, the Court acknowledges that it has also had regard to sections 135 and 136 of the Evidence Act.
8. The relevant legislation is the Surveillance Devices Act 2007 (NSW). The relevant section appears to be section 7, though Counsel did also refer me to section 11 as well.
9. Section 7 states:

7. Prohibition on installation, use and maintenance of listening devices

(1) 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 a 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: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) Subsection (1) does not apply to the following:

(a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,

(b) the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth,

(c) the unintentional hearing of a private conversation by means of a listening device,

(d) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,

(e) the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment,

(f) the use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,

(g) the use, in accordance with section 50A, of body-worn video by a police officer.

(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

(4) Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if:

(a) a party to the private conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity, and

(b) the person using the listening device is that participant or another participant in that authorised operation.

(5) In this section:” authorised operation” and “participant” in an authorised operation have the same meanings as in the Law Enforcement (Controlled Operations) Act 1997. The definition of “participant” in an authorised operation includes a “civilian participant” within the meaning of the Law Enforcement (Controlled Operations) Act 1997.

10. Section 11 states:

11 Prohibition on communication or publication of private conversations or recordings of activities

(1) A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part. Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2) Subsection (1) does not apply to the following:

(a) if the communication or publication is made:

(i) to a party to the private conversation or activity, or

(ii) with the consent, express or implied, of all the principal parties to the private conversation or activity, or

(iii) for the purpose of investigating or prosecuting an offence against this section, or

(iv) in the course of proceedings for an offence against this Act or the regulations,

(b) if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of:

(i) serious violence to persons or of substantial damage to property, or

(ii) commission of a serious narcotics offence.

(3) A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.

11. The cases that have been decided on this issue to tend to focus on section 7. Indeed, the focus is on section 7(3)(b)(i).Section 7(3) says that the prohibition contained in s7(1) does not apply to the use of a listening device by a party to a private conversation if (b) the principal to the conversation consents to the listening device being so used, and the recording of the conversation (i) is reasonably necessary for the protection of the lawful interests of that principal party. The Applicant contends that this subsection is activated. The Respondent contends that this subsection is not so activated.
12. During the course of submissions I was referred to a number of cases, firstly, Janssen & Janssen, a decision of McClelland J in the Family Court of Australia at Sydney, together with the cases referred to by his Honour.
13. I was referred to the decision of the New South Wales Court of Criminal Appeal in DW v R(2014) NSWCCA 28, and that is a decision of Ward, Harrison and Hulme JJ. In addition, the Court has also had regard to a decision of Brereton J in Chao v Chao(2008) NSWSC 584.
14. The Applicant is self-represented, and that is a fact that overshadows this case. It is highly likely that a legally represented party would not have allowed this issue to emerge so late in the litigation and in such an amorphous manner. However, the fact is that this case will now go part heard. It is a reality that the Court cannot ignore, and it is possible that the passage of time will cure, or at least mitigate, some of the difficulties and potential prejudice that arise should the evidence be admitted.
15. Is section 7(3)(b)(i) activated in this case? The Applicant says that she was merely protecting her legitimate interests in her relationship with the Respondent. But what interest was the Applicant protecting? With a self-represented litigant, often all the Court can do is to look at the totality of the material that she relies on, as well as what submissions she actually makes in order to understand not only what the Applicant says on this very complex issue, but seek to infer and understand what she meant having regard to all of her evidence, untested as it is.
16. The Court believes that it has an overriding duty to ensure that the trial is a fair one. That is a principle that has been stated by the Court of Appeal in New South Wales in Hamod v State of New South Wales(2011) NSWCA 375, and by the Full Court of the Federal Court in SZRUR v The Minister of Immigration (2013) FCAFC 146.
17. It is hard to see how the Court can ensure that this hearing is fair if it is limited to what the Applicant says in oral submissions on a highly technical issue of law. Doing the best that the Court can, and by taking the Applicant’s case at its highest, the lawful interest that she was seeking to protect was her belief in a certain status of the relationship with the Respondent in which she bore his daughter and during which she maintains that he said and did things that led her to believe that their relationship had a certain status which enjoyed a certain protection at law. That is her case in a nutshell, doing the best the Court can.
18. The Respondent denies that.
19. Does she have a lawful interest to protect? The Court believes that she does. The Court does not accept the highly rigid and narrow interpretation of lawful interest that was advanced by Counsel for the Respondent and which, for example, is quite inconsistent with the approach adopted in Janssen & Janssen and the cases referred to therein. Indeed, despite Counsel’s attempt to distinguish Janssen & Janssen and the cases referred to therein, the issue in this case is not all that conceptually different to Janssen or Huffman & Gorman (No.2) [2014] FamCA 1077.
20. The violence that is referred to in those cases took place in private. The notoriety of establishing that which occurs in private, especially family violence, is something that the Full Court of the Family Court has taken judicial notice of. How is it conceptually different here? In private, the Applicant and Respondent appear to have had certain conversations. The Applicant contends that those conversations were about the nature of their relationship. That is the fundamental matter in respect of which the Court must decide under section 90RD. It is her word against his. There are only two witnesses in this case. It is an uneven contest with the Respondent represented by very experienced solicitor and counsel, and the Applicant representing herself.
21. There is nothing about this case which materially or conceptually distinguishes it from the principles that were discussed and applied in Janssen where McClelland J held that the subsection was activated. Reference was made during submissions by Counsel for the Respondent to a particular paragraph in the decision of the Court of Appeal in DW & R. Perhaps of greater assistance is reference to paragraphs 27 to 37 inclusive of the Court of Appeal’s decision, a useful – indeed, comprehensive – discussion of what “lawful interest” means for the purpose of this subsection. Having read those paragraphs, the Court is reinforced in the interpretation that it has adopted.
22. Was the recording reasonably necessary? For the same reasons as set out above, the Court believes the answer is yes. What other reasonable option would the Applicant have? The Court records that even if it is wrong on this particular issues, it has actively turned its mind to sections 135, 136 and 138 of the Evidence Act. It would exercise its discretion in allowing the evidence to be led.
23. What needs to be made very clear to all parties in this case, and perhaps especially to the Applicant, is this: all the Court is ruling on is admissibility of evidence. It is not ruling on the weight that will be given to evidence. Evidence might be admissible, but it might not receive much weight.
24. Indeed, the significance of these comments is particularly acute in a case like this where because of the way in which the case has been run, it is necessary to make rulings about evidence which is of an unspecific nature. Nonetheless, this issue can be dealt with by the making of certain directions which will provide notice to the Respondent as well as seek to contain the scope of the evidence. The matter stands part heard. I see no point in resuming the evidence at this particular point of the afternoon. Shortly, I will discuss with the Applicant and the Respondent’s Counsel the dates, or date, to which this matter can stand adjourned.
25. Nonetheless, I intend to make, and I do make, the following directions. Within 14 days, the Applicant is to provide to the Respondent’s solicitor, in electronic form, audio recordings of no more than six conversations that she asserts are relevant to the issue of the nature of the relationship between the parties. Nextly, within 14 days, the Applicant is to file and serve an affidavit in which she (1) sets out the factual context of the making of the audio recordings referred to above; (2) the date and time of such recordings; and (3) attaches a transcript of the same recordings. I make one further order, and this is out of abundant caution, and that is I grant to the Applicant a certificate under section 128 of the Evidence Act in relation to the evidence that is referred to in this order.
26. I have heard an application for costs – indeed, indemnity costs – by the Respondent against the Applicant. I decline to make any order for costs other than to reserve the costs of both parties. It is now the second day of these proceedings. A number of general observations need to be made about how the last two days have been spent. A lot of time was spent dealing with multiple objections to subpoena, most of which were rejected.
27. Many objections have been made to the Applicant’s evidence. Many of these objections were unhelpful and indeed time consuming. However, I concede that a number of objections to the Applicant’s material was, in fact, sustained. I have had to make a number of rulings, none of which have gone in favour of the Respondent. In these circumstances, to make an application for indemnity costs is perhaps somewhat premature to say the very least. I, therefore, reserve the costs of both parties.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 29 June 2017

NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability.  An example is where the Court has expressly authorised the publication. 

A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.