Farmer & Killen (No 2)

[2015] FamCA 809

FAMILY COURT OF AUSTRALIA

FARMER & KILLEN (NO 2) [2015] FamCA 809

FAMILY LAW – PRACTICE AND PROCEDURE – Evidence – Where father sought to adduce evidence of two conversations in circumstances where the parties were not aware the conversations were recorded – Evidence inadmissible

Family Law ACT 1975 (Cth)
APPLICANT:	Mr Farmer

RESPONDENT: Ms Killen

INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

FILE NUMBER: HBC 206 of 2014

DATE DELIVERED: 18 August 2015

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 18 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Farmer in person

COUNSEL FOR THE RESPONDENT: Ms Ryan

SOLICITOR FOR THE RESPONDENT: PWB Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Ryan

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fitzgerald

Legal Aid Commission

IT IS DIRECTED

1. THAT a copy of the reasons be taken out and placed on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farmer & Killen (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 206 of 2014

Mr Farmer

Applicant

And

Ms Killen

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. In his affidavit filed 12 November 2014  Mr Farmer (‘the father’) wishes to adduce into evidence a voice recording of a conversation he allegedly had with Ms E on 9 January 2013 and a conversation he had with Ms F on 10 January 2013.  In these ex tempore reasons I make it clear that I include as part of my reasons the exchanges I have had between the father and counsel in relation to this question of the admissibility of that material.

2. The factual basis appears to be this: that the father had those two conversations with the maternal grandmother and the maternal great grandmother in circumstances where he recorded the conversations.  He knew that the conversations were being recorded however; the maternal grandmother and maternal great grandmother did not know the conversations were being recorded.  The conversations relate to two primary issues, as I understand it.

3. The first is an allegation or an issue in relation to some abuse of the mother which allegedly occurred some 20 years ago.  That is adduced, as I understand it, or sought to be adduced by way of evidence as to the risks to the children if they are left in the unsupervised care of the maternal grandparents or great maternal grandmother.  The second is the statements that the mother had engaged in some family violence which would impact upon her ability to care for the children.

4. I have not listened to the tape recording, but I have read the transcripts and for the purpose of this determination I have assumed that those transcripts are accurate.  It is also, as I understand it, an agreed fact that shortly after the affidavit of 12 November 2014 being filed some eight or nine months ago the legal representatives for the mother wrote to the father and said that they would object to that material being adduced in evidence or object to the father relying upon that material. 

5. I am also conscious in this decision, as submitted by the father, that he represents himself.  He has no legal qualifications and I accept that that is somewhat of a burden for him, as I indicated at the commencement of this hearing.  It is not in issue that subpoenas were not issued to the maternal grandmother or the maternal great grandmother to give evidence in relation to this material. 

6. The material is the subject of state legislation in terms of the Tasmanian Listening Devices Act 1991 (Tas) and given the nature of that Act it would preclude its admissibility in courts and probably in most state courts, although there would be an issue presumably in respect of a state court exercising jurisdiction under the Family Law Act 1975 (Cth) (‘the Family Law Act’), which would be bound by the Evidence Act 1995 (Cth) (‘the Evidence Act’).

7. I have been taken to section 138 of the Evidence Act, which provides that evidence that was obtained in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.  It is not asserted that this was done vexatiously, but there is a strong public interest argument to restrain or reduce the use of material obtained in such a way and the obvious reason for that is this: that the person who is doing the recording has knowledge it is being recorded and can modify their questions and can modify their behaviour, whereas the person that is being recorded has no idea that this is occurring.

8. This also has to be seen in the light of the nature of these proceedings.  It is clear that I have a discretion and it is clear that family violence is required to be and is, in fact, taken seriously in the context of the parenting of children.  The context of these events is that they occurred some 20 years ago, and would have little impact in these proceedings.  The submission alone would not, in my view, support an allegation of such violence, and particularly given the submissions made on behalf of the Independent Children’s Lawyer, enable the recordings to be admitted.

9. In terms of the allegations of violence, the many statements are of a form which is, as indicated by counsel for the Independent Children’s Lawyer, self-serving.  I generally accept and adopt the submissions of the Independent Children’s Lawyer and, given all of the facts and circumstances I will reject that evidence.  Accordingly, I will not allow that evidence to be used in these proceedings. 

10. I direct that a copy of these reasons be taken out, settled and placed upon the Court file.  So that the father can understand, I have given some reasons.  I am entitled to polish them.  Some times when I speak I get tenses wrong.  I am entitled to put the language in clear language.  I will do that and place that on the Court record so that if somebody at some later stage wishes to look at it, it is there for them.  As a consequence paragraphs 61, 62, 79 and 80 of the father’s affidavit filed 12 November 2014 are rejected. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 August 2015.

Associate:     

Date:              18 August 2015