1: Janssen & Janssen [2016] FamCA 345 | January 1, 2016

Court or Tribunal: Family Court of Australia
Catchwords: Discretion to Admit Evidence, Evidence, Recorded conversations
Judges:  McClelland J


Background: This is a case where the applicant mother secretly recorded the respondent father making threats of violence against the children. Counsel for the Applicant mother sought to tender these voice recordings and transcripts of these conversations, made without the father's consent, to the hearing. The recordings and transcript were only provided to the father's legal representatives less than a week prior to the commencement of the hearing. This did not comply with the pre-trial directions for the filing of evidence.  
 
  [Legal Issue]The Court found that the audio recordings fall within the exception contained in sub-section 7(3)(b) of the Surveillance Devices Act 2007 (NSW), as the recordings were reasonably necessary to protect the lawful interests of the mother. The Court also exercised its discretion to admit the audio recordings and transcripts into evidence. A certificate was issued to the mother pursuant to section 128 of the Evidence Act 1995 (Cth).   [Court Orders]The bulk of the audio recordings and the transcript of the audio recordings between the parties were accepted as evidence in the proceedings.     


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2: Huffman & Gorman (No. 2) [2014] FamCA 1077 | October 13, 2014

Court or Tribunal: Family Court of Australia
Catchwords: Allegations of Child Abuse, Discretion to Admit Evidence, Emotional Abuse, Recorded conversations
Judges:  Hannam J


Background: The mother is 42 years old and the father is 43 years old. The parties commenced a relationship in 1999 when they were in their late twenties. The case involves competing claims of domestic violence and alleged child abuse. To support his case, the father has submitted transcripts of recorded conversations between himself and the mother. These recordings were made covertly, without the knowledge of the mother.  
 
  [Legal Issue]At issue is the admissibility of transcripts of covertly recorded conversations made by the father, alleged to have captured various unguarded conversations between the mother and the father. The mother objected to the admission of the transcripts of audio recordings on the basis that the evidence was unlawfully obtained and was inadmissible. Both the father and the Independent Children’s Lawyer sought to have the evidence admitted and argued that even if it were prima facie inadmissible the court should exercise its discretion to admit it.   [Court Orders]The evidence, which refers to transcripts of recorded conversations in the father's affidavit in paragraphs 25, 128 to 150 and 235 filed on 23 September 2014, is admissible.      


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