In the recent matter of Jasper & Corrigan (No. 2)  FCCA 1467 Judge Altobelli was asked to determine the admissibility of conversations secretly recorded by the mother without the knowledge of the father.
The substantive issue before the Court in this matter was the existence of a de facto relationship between the parties, with the mother asserting that such a relationship existed. Conversely the father stated that there was only a 15 month sexual relationship, despite the parties having a 3 year old child together.
During the course of the proceedings His Honour highlighted that there was insufficient evidence from the parties, with the matter essentially being ‘he said/she said.’ The Applicant then provided information to the Court during the proceedings that she possessed audio recordings she had made of the conversations between the parties which would be pertinent to determining this issue. It was not disputed that the recordings had been made without the knowledge of the father, with the father maintaining that these were illegally obtained and as such could not be admitted.
In determining the outcome Judge Altobelli looked to both the Evidence Act as well as the Surveillance Devices Act. It was found that the recording could be said to be legally obtained if the recordings were necessary for the protection of lawful interests of that party. In this case the mother asserted that her lawful interest was the status of the relationship she had with the father.
The Court agreed with this and found that the mother did have a lawful interest she was seeking to protect.
Judge Altobelli did however note that while the audio recordings would be ruled as admissible, they may not receive a large amount of weight.