VC v Secretary of the Department of Communities and Justice & Ors [2024] NSWDC 166

VC v Secretary of the Department of Communities and Justice & Ors [2024] NSWDC 166

The transcript of the Father's sound recording of his conversation with Tim was illegally obtained under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW), as there was no consent and no established lawful interest exception. The evidence was not of sufficient probative value, and the desirability of admitting it...

Source-derived case information.

Parties
Plaintiff: The Father; First Defendant: The Secretary of the Department of Communities and Justice; Second Defendant: The Minister for Families and Communities; Third Defendant: The Mother; Independent Legal Representative: Mr P Ryan
Jurisdiction
Australia
Judgment Date
10 May 2024
Procedural Posture
Child Care Appeal / Interlocutory Evidentiary Ruling
Outcome
Objection upheld; evidence inadmissible.
Legal Topics
Admissibility of Illegally Obtained Evidence, Rules of Evidence on Appeal, Surveillance Devices in Proceedings, Relevance of Evidence in Child Care Appeal
Evidence Civil Procedure Children's Law Admissibility of Illegally Obtained Evidence Rules of Evidence on Appeal Surveillance Devices in Proceedings Relevance of Evidence in Child Care Appeal

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Summary, issues, holding and outcome

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Parties

The Father

Plaintiff

The Secretary of the Department of Communities and Justice

First Defendant

The Minister for Families and Communities

Second Defendant

The Mother

Third Defendant

Mr P Ryan

Independent Legal Representative

Procedural Posture

Child Care Appeal / Interlocutory Evidentiary Ruling

Legal Issues

  1. 1 Whether transcript of sound recording obtained by the Father without consent is admissible
  2. 2 Whether the evidence was illegally obtained under the Surveillance Devices Act 2007 (NSW)
  3. 3 Whether court is bound by rules of evidence in child care appeal

Ratio Decidendi

The transcript of the Father's sound recording of his conversation with Tim was illegally obtained under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW), as there was no consent and no established lawful interest exception. The evidence was not of sufficient probative value, and the desirability of admitting it did not outweigh the undesirability given its manner of obtainment. Therefore, the evidence is inadmissible and rejected.

Court Disposition

Objection upheld; evidence inadmissible.

Orders

  • Evidence in paragraph 4 of the Father's affidavit and Annexure A is rejected as inadmissible.
  • Father's cross-examination question to the Mother regarding rejected evidence is disallowed.