Burgess & Burgess (No 2) [2026] FedCFamC1F 649

Summary

The parties began living together in 1998 or 2000, married in 2009 and separated in 2021 or 2022, after a relationship of some 22 years. The husband commenced property proceedings in Division 2 in November 2023, and the matter was transferred to Division 1. The trial began in Adelaide on 27 April 2026 and was adjourned part-heard after four days. During that first tranche, the wife sought to tender a recording she had made on her mobile phone without the husband’s knowledge, containing comments that, on her case, were admissions of sexual assaults committed while she was asleep. The husband objected that the recording was obtained in contravention of s 4 of the Surveillance Devices Act 2016 (SA). Parker J found that the wife had not established the exemption for recordings reasonably necessary to protect a lawful interest but admitted the recording in the exercise of the discretion in s 138 of the Evidence Act 1995 (Cth), and the husband was cross-examined extensively about it. On 5 August 2026, while the trial was adjourned, the High Court delivered Potter (A Pseudonym) v The King [2026] HCA 25, on facts her Honour described as bearing a striking resemblance to this case.

Following an Application in a Proceeding filed by the husband, at the Court’s invitation and in light of Potter, Parker J revisited the interlocutory ruling and held that it could not stand. Applying Potter, if the lawful-interest exemption is not made out, s 12(1) of the South Australian Act prohibits use of the recording and no discretion under s 138 arises. Even if the wife could bring herself within the exemption, which Potter suggested may be possible given the recognised interest in bodily autonomy and integrity, s 9(1) restricts the use of a recording made to protect a lawful interest to listed circumstances. The relevant family law property proceedings were not a “relevant action or proceedings” under that Act, the husband had not consented, and the power to authorise use is confined to judges of the Supreme Court of South Australia. Her Honour rejected the submission that a federal court is not bound by the State Act. Sections 9(1) and 12(1) are laws relating to evidence picked up by s 79 of the Judiciary Act 1903 (Cth), and s 138 of the Evidence Act does not “otherwise provide”, because it regulates admissibility rather than prohibiting use. In any event, the provisions create offences binding on the wife personally, so allowing the recording to be used would make the Court’s processes an instrument of an offence. Turning to recusal, Parker J accepted that hearing inadmissible evidence is not ordinarily enough to disqualify a judge. Here, however, she had listened to the recording several times, observed the parties’ demeanour as it was played, and heard detailed cross-examination on it that was intertwined with credit. A fair-minded lay observer might reasonably apprehend that she could not bring an impartial mind to the case. Her Honour recused herself, aborted the trial and granted the husband a costs certificate under s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth).

Covert recordings are increasingly common in family law litigation, particularly where family violence is alleged. This decision shows that, in South Australia at least, State surveillance legislation leaves limited room for the s 138 discretion family lawyers commonly rely on, and can prevent use of a recording even where it was lawfully made. It also shows the real cost of an admissibility ruling that later proves wrong: a part-heard trial lost, a new judge and a second hearing.