Wednesday, 4 February 2009

Mum bugged the bear, Dad zaps it instead

From America comes the tale that in the midst of a court fight about their daughter, the mother removed the head of the daughter's teddy bear to place a digital recorder in teddy's body, so as to be able to record what happened back at the father's home.

Being absolutely committed to the recordings, mum made sure dozens of hours were recorded over several months. Being a "helping" grandfather, the mum's father transcribed the recordings, adding his own spin on what was said.

Mum then tried to introduce the recordings in their family court fight. It turns out that the recordings were illegal in Nebraska, as well as reviewing illegal recordings, and not surprisingly the family court judge refused to allow the recordings into evidence.

Mum presumably was seeking to decrease the amount of time between dad and their daughter, but ended up in a shared care arrangement. What is perhaps surprising is that the court did not remove the child from her care, although apparently the case is continuing.

Dad in turn, along with others is now suing mum, her father and her then lawyers.

When the daughter comes over to dad's place he makes sure he now zaps the bear and other items in the microwave to make sure that they are bugfree.

Initial thoughts

The case clearly illustrates the lengths people will go to in bitter disputes.

It also illustrates that when that elusive thing called trust breaks down, it can take a long while to get back- hence dad zapping the bear in the microwave, because he cannot trust mum to not do it again.

The position here...

It is often seen as a low trick for recordings to be made between husband and wife. They could result, in cases like this, in a child being removed from the parent undertaking the recording, and being placed in the care of the other, with a break of all contact between the child and the recording parent.

The law concerning recordings is different from State to State, although phone recordings are subject to Federal law. Because I am a Brisbane family lawyer, I will only deal with the situation in Queensland.

Could mum, under Queensland law, legally have made the recordings?

Answer: NO.

Under section 43(1) of the Invasion of Privacy Act 1971, it is an offence, punishable by up to 2 years jail to use:



a listening device to overhear, record, monitor or listen to a private
conversation.


Exceptions apply to cover police and if the person recording is a party to the conversation.

Could mum, under Queensland law, legally have told her dad or the court about the recordings?

Answer: NO.

Section 44(1) of the Invasion of Privacy Act makes it an offence, punishable by up to 2 years imprisonment :

if the person communicates or publishes to any other person a private conversation, or a report of, or of the substance, meaning or purport of, a private conversation, that has come to his or her knowledge as a result, direct or indirect, of the use of a listening device used in contravention of section 43.

There are some exceptions, but not relevant to these facts.

Could the mother have used the recordings in proceedings here?

Answer: Probably not.

In Queensland courts, the position is clear: without the consent of the father, the recordings are not admissible: section 46(1) Invasion of Privacy Act.

In family law proceedings, the chances of the recordings being used are very low. Proceedings in the Federal Magistrates Court and Family Court are generally governed under the Commonwealth Evidence Act. [Similar legislation applies in NSW and Victoria.] Section 138 of that Act prohibits unlawfully or improperly obtained evidence from being admitted, although giving a discretion to a judge to let such evidence in.

The matters the judge can take into account as to whether to let the recordings in include:





  • the probative value of the evidence;


  • the importance of the evidence in the proceeding;


  • the nature of the relevant offence, cause of action or defence and the nature of the subject‑matter of the proceeding;


  • the gravity of the impropriety or contravention;


  • whether the impropriety or contravention was deliberate or reckless;


  • whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights;


  • whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and


  • the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

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