Pointer & Cheadle 2019 FamCA 452

The case of Pointer & Cheadle [2019] FamCA 452 is a good case to have to hand when your client has “new information” about the property pool, the other party’s circumstances, or anything where you might question the providence of the information.

It was a preliminary issue in parenting proceedings that led to the extempore judgment.  The issue is the admissibility of a message left as a result of a pocket call on a phone. The message was left by the mother on the father’s phone.

The transcription of the telephone voicemail messages was sought to be tendered by the husband. He also wanted the actual recordings to be admitted into evidence.

The mother opposed it because she said two of the recordings were inadvertently left by her. The mother contended further that one of the messages was a recording that had been made by the father while the mother was speaking to one of the parties’ children on the phone. The child was speaking to the father.

Although the points are narrow, the decision takes us through the pathway that will be followed in determining the admissibility of evidence:

  1. Relevance – section 56 of the Evidence Act provides “except as otherwise provided by this Evidence Act, evidence that is relevant in a proceeding is admissible in the proceeding”. The court determined that two of the three annexures were relevant. The next step was to consider the words “except as is otherwise provided in the Act”.
  2. The court referred to section 138(1) of the Evidence Act which says:

             “(1)  Evidence that was obtained:

                     (a)  improperly or in contravention of an Australian law; or

       (b)  in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

As can be seen, subsections (a) and (b) are to preconditions.  The Judge was inclined to accept the father’s version as more probable than the mother’s.

It became relevant to consider whether the recordings had been unlawfully or improperly obtained.

  1. Was it unlawfully or improperly obtained?
  2. The next relevant legislation to be considered was section 108 of the Telecommunications (Interception and Access) Act 1979 (Cth). That section provides as follows:

“108  Stored communications not to be accessed

             (1)  A person commits an offence if:

(a)   the person:

(i)      accesses a stored communication; or

(ii)     authorises, suffers or permits another person to access a stored communication; or

(iii)     does any act or thing that will enable the person or another person to access a stored communication; and

(b)   the person does so with the knowledge of neither of the following:

(i)      the intended recipient of the stored communication;

(ii)     the person who sent the stored communication.”

There is a notation to that section which is:

“This section does not prohibit accessing of communications, that are no longer passing over a telecommunications system, from the intended recipient or from a telecommunications device in the possession of the intended recipient.”

  1. What is the definition of stored communication and how relevant is it? Section 5 of the Act provides:

“stored communication means a communication that:

  • is not passing over a telecommunications system; and
  • is held on equipment that is operated by, and is in the possession of, a carrier; and
  • cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.”

The Judge was satisfied that the messages were no longer passing over the internet and they were not stored communications for the purposes of the Act.  The Judge found at paragraph 10:

“It’s my view that the evidence has not been improperly obtained or unlawfully obtained in either of paragraphs 138(1) to which he had referred”.

The Judge permitted the tendering of two.

An issue of the authenticity, accuracy or the significance of the recordings or transcripts was not a matter upon which the Judge had made a finding.

In relation to the third annexure which the Judge had not been as confident of the relevance of, he relied on section 57 of the Evidence Act to provisionally admit evidence subject to its relevance being established.

This is a very helpful reminder of the pathways, the issues to be considered, and the tools to be employed by practitioners.