Wednesday, 19 November 2008

Wisdom of Solomon: Husband's recordings result in Pyrrhic victory

In the recent Family Court case of Latham and Latham, the husband, before the parties split up, got his digital recorder out and recorded 11 hours of conversations between the wife and the children.

Realising that this was far too big to be of any use, he then copied an hour of snippets onto a disk.

Then when he was about to be interviewed for the family report, the husband turns up and voila! produces his disk and asks the family report writer to listen to the 1 hour disk.

That's where the matter rested when it got to court. The husband suggested naturally that the disk should be admitted into evidence. He suggested that the disk would show that the wife was extremely abusive of the children and that the recordings would "give colour" to his allegations made in his affidavit of her abuse.

Step 1: were the recordings legally made?

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any offence outside of an offence defined by the then New south Wales Listening Devices Act (which has since been repealed).

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 was no suggestion that he committed any unlawful act by listening to the conversations or indeed repeating them.

The husband submitted that:
  • because of those matters it was reasonably necessary that the recordings were made.
  • 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”.
  • 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 the disk under s.138 of the Evidence Act. That section provides, amongst other things, 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”.

  • 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.

  • 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.

Justice Le Poer Trench held that the provisions of the Listening Devices Act had been met and that the disk should be admitted, and if he were wrong, that the disk should be admitted under s.138 of the Evidence Act. His Honour held:

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.

Step 2: what does the expert get?

The wife opposed the 1 hour recording being admitted in part because the disk only contained snippets and that in fairness, the expert should get all 11 hours.

Justice Le Poer Trench held that if the wife sought for the full 11 hours to be admitted into evidence, then she could bring that application, which his Honour assumed would not be opposed by the husband.


The wife submitted that:

  • in the event of the admission of the disk the husband is to provide to the family report writer the whole 11 hours of recording so as to enable the report writer to listen, should he so desire, to the whole of the 11 hours.
  • the husband should meet the cost of any such exercise.
  • the wife should have an opportunity to further attend upon the family report writer, again at the husband’s cost, in order to allow her to put into context the circumstances of the recordings.
  • the family report writer be invited to comment should he deem it appropriate, in relation to the husband’s behaviour in making the recordings.

The husband submitted:

  • that in the event of the disk being admitted to evidence the family report writer should be asked to complete his report.
  • the family report writer should be provided with a transcript of the evidence given by the husband in relation to the manner in which the recordings were made.
  • should the family report writer wish to listen to the entirety of the recordings then he should be entitled to do so.
  • the family report writer 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.

His Honour held:


  • the family report writer should be instructed to forthwith conclude his report.
  • Each of the parties should be further interviewed by him.
  • he should be provided with the disk and the 11 hours.
  • he should be directed to listen to the disk and be invited to listen to the contents of the whole 11 hours for as much or as little as he deems appropriate.
  • he 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.

Step 3- a pause before the end

If the family report writer did not listen to the whole 11 hours, one of the parties through their lawyers would be presumably unhappy with the recommendations of the report and would criticise the report writer for not listening to the lot. Out of an abundance of caution, it would probably be necessary for the report writer to listen to most if not the whole eleven hours, a very expensive exercise for whomever has to pay for it.

And who is going to pay for all of this I hear you ask?

Step 4- wisdom of Solomon combined with Pyrrhic victory

If the husband was going to record umpteen hours, then he ought to pay for it. His Honour held:

The additional cost incurred of reinterviewing the parties and the time incurred by the family report writer in considering the material in the recordings should be met by the husband.

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