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

Lawful to Make Isn't Lawful to Use: Why a Covert Recording Was Excluded and a Part-Heard Property Trial Was Aborted

In Burgess & Burgess (No 2) [2026] FedCFamC1F 649, the Court dealt with whether a wife could keep relying on a recording she had secretly made of a conversation with her husband, after the High Court's decision in Potter (A Pseudonym) v The King [2026] HCA 25 changed the legal ground under an earlier ruling that had let it in. The result: the earlier order admitting the recording was discharged, Parker J recused herself, the part-heard property trial was aborted and sent for reallocation to another judge, and the husband was granted a costs certificate (Orders 1–6; [48], [59]–[60], [63]). The important point is that, under the South Australian legislation applied here, even a recording made lawfully to protect the maker's lawful interests can only be used in the limited situations the Act allows, and these family law property proceedings were not one of them ([32]–[36]). Section 138 of the Evidence Act 1995 (Cth) could not override that restriction ([44]–[45]). And because the judge had already heard the recording and lengthy cross-examination based on it, she could not fairly be seen to put it out of her mind ([58]–[59]). All paragraph references below are to the judgment.

Why it matters: Secret recordings come up all the time in family law. Many parties assume that if the recording is relevant, or if they had a good reason to make it, the court will let it in under a general discretion. This judgment shows why that assumption is dangerous. The State surveillance law can control whether the recording can be used at all, not just whether it was lawfully made. Getting it wrong can cost more than the recording: here it cost four days of trial, the trial judge and the hearing itself ([3], [58]–[60]).

🧩 Facts and Issues

The parties and the proceedings

This is a property case under s 79 of the Family Law Act 1975 (Cth) between the applicant husband and the respondent wife ([1]). The judgment is published under a pseudonym with approval under s 114Q(2) (cover notes).
The parties began living together in 1998 (on the wife's account) or 2000 (on the husband's), married in 2009, and separated in December 2021 (on the husband's account) or May 2022 (on the wife's) ([2]).
The husband started the case in Division 2 on 6 November 2023. It was transferred to Division 1 on 8 July 2025 ([3]).
The trial began before Parker J on 27 April 2026 and ran for four days. It was adjourned part-heard, to resume on 26 August 2026 ([3]).

The recording and the first ruling

During the first part of the trial, the wife sought to rely on recordings of conversations between the parties that she had made on her mobile phone without the husband's knowledge ([5]).
One recording was admitted by order of 29 April 2026 (amended under the slip rule on 4 May 2026). The other was excluded by order of 30 April 2026. Reasons were published on 15 June 2026 ([5]).
The admitted recording included comments by the husband that were, on the wife's case, admissions of her allegations that he had sexually assaulted her while she was asleep ([6]). These are allegations. This judgment makes no findings about them.
The husband objected that the recording was made illegally, in breach of s 4 of the Surveillance Devices Act 2016 (SA), and asked that it be excluded under s 138 of the Evidence Act ([7]).
The wife said it was lawful because recording was "reasonably necessary for the protection of [her] lawful interests" under s 4(2)(a)(ii) ([9]).
In the earlier reasons, Parker J was not satisfied the wife had made out that exemption, but admitted the recording anyway using the s 138 discretion ([10]). The recording was played, and the husband was "cross-examined extensively" about it ([10]).

What changed: the High Court's decision in Potter

On 5 August 2026, while the trial was adjourned, the High Court decided Potter ([11]). Its facts "bore a striking resemblance" to this case ([11]): a covert recording, made in South Australia, of a husband allegedly making admissions to raping the wife while she was asleep ([14]).
Parker J's earlier reasoning had matched the South Australian Court of Appeal majority in Potter. The High Court's judgment "called into question" that reasoning, so the parties were invited to apply to revisit the ruling ([11], [16]).
On 14 August 2026 the husband applied to discharge the order admitting the recording. He initially also sought costs against the wife but "sensibly" did not press that ([12]).
Submissions were heard when the trial was due to resume on 26 August 2026. The trial could not resume and remained part-heard ([4]).

Issues

Could the Court revisit its earlier interlocutory ruling ([13])?
After Potter, could the recording still be admitted, either because the "lawful interests" exemption applied or through the s 138 discretion ([14]–[48])?
Did the Surveillance Devices Act restrictions bind a federal court exercising federal jurisdiction in South Australia ([37]–[45])?
If the recording was excluded, did the judge have to recuse herself for apprehended bias ([49]–[60])?
Should the husband get a costs certificate for the aborted hearing ([61]–[64])?

⚖️ Applicable Law – Legislation, Regulations, Rules

Surveillance Devices Act 2016 (SA):
s 4(1) stops a person knowingly using a listening device to record a private conversation they are a party to ([8]).
s 4(2)(a)(ii) is the exception the wife relied on: use by a party to the conversation that is "reasonably necessary for the protection of the lawful interests of that person" ([8]–[9]).
s 12(1) prohibits the knowing use, communication or publication of material derived from a device used in breach of Pt 2 (which includes s 4). It creates an offence punishable by imprisonment ([17], [46]).
s 9(1) applies even when the device was used to protect the maker's lawful interests. It limits use, communication or publication of the material to the situations listed in paras (a)–(h), such as use in a "relevant action or proceedings", with each party's consent, or under an order of a "judge" ([33]–[34]).
s 3 defines "relevant action or proceedings" (which relevantly includes a prosecution of an offence) and "judge" (a judge of the Supreme Court of South Australia) ([35]–[36], fn 12).
Evidence Act 1995 (Cth), s 138: the discretion to exclude (or admit) improperly or illegally obtained evidence ([7], [10]). The Court held it is about admissibility and does not deal with a State law that prohibits the maker from using a recording at all ([44]–[45]).
Judiciary Act 1903 (Cth), s 79(1): State laws, "including the laws relating to procedure, evidence, and the competency of witnesses", bind courts exercising federal jurisdiction in that State, "except as otherwise provided" by the Constitution or Commonwealth laws ([38]).
Family Law Act 1975 (Cth):
s 79 is the property jurisdiction in which the trial was being run ([1]).
s 102NA: an order had been made under this section, and as a result the wife's trial costs were funded through the Family Violence and Cross-Examination of Parties Scheme ([64]).
Part XIVB and s 114Q(2) are the publication restrictions and the approval of the pseudonym (cover notes).
Federal Proceedings (Costs) Act 1981 (Cth), s 10(3): where a hearing is discontinued and a new hearing ordered, and that is not due to any party's neglect, default or improper act, the court may grant a party a costs certificate ([62]).
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.13(1)(c) and r 1.05 (definition of "interlocutory"): the source of the power to set aside the earlier interlocutory ruling ([13], fn 4).

📌 Precedents Relied On

Potter (A Pseudonym) v The King [2026] HCA 25: The decisive authority. If the s 4(2)(a)(ii) exception is not made out, s 12(1) prohibits use and no discretion to admit arises ([17]–[19]). A person's interest in bodily autonomy and integrity, including not being raped, can be a "lawful interest" ([21]–[24]). The maker's intentions "may" be relevant, but the test is objective, assessed in the circumstances at the time ([27]–[29]). Even where the exception applies, s 9(1) limits later use ([34]). In Potter, use was allowed because the prosecution was a "relevant action or proceedings" ([35]).
Burgess & Burgess [2026] FedCFamC1F 396: The earlier reasons admitting the recording under s 138 ([5], [10], fn 1).
Bogan v The Estate of Peter John Smedley (Deceased) [2025] HCA 7; Rizeq v Western Australia [2017] HCA 23: How s 79 of the Judiciary Act picks up State laws, including procedural and evidence laws, and applies them as Commonwealth law in federal jurisdiction ([39]–[40]).
Masson & Parsons [2019] HCA 21: The limits of s 79: it fills a gap in laws governing how jurisdiction is exercised and does not alter substantive rights ([41]). "Otherwise provided" means inconsistency, tested in the same way as s 109 of the Constitution ([43]). Also cited in support of the conclusion that s 9(1) is picked up ([42], fn 17).
Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116: Cited ("see also") alongside Potter for the effect of s 9(1) ([42], fn 16).
Batistatos; Michael Wilson & Partners v Nicholls; Tomlinson v Ramsey Food Processing; UBS AG v Tyne: Abuse of process: the Court should not allow its processes to be used in the commission of an offence ([47], fn 18).
Ebner v Official Trustee in Bankruptcy [2000] HCA 63: The apprehended bias test (would a fair-minded lay observer reasonably apprehend that the judge might not bring an impartial mind) and the two-step method ([50]–[51]).
Webb & Hay v The Queen [1994] HCA 30: The four categories of apprehended bias, including "extraneous information" ([52]–[53]); it is "the court's view of the public's view" that counts ([54(e)]).
Johnson v Johnson [2000] HCA 48; QYFM; CNY17; Re JRL; Ex parte CJL; Isbester v Knox City Council: The inquiry is objective, does not require a finding about the judge's actual state of mind, and considers all circumstances. The fair-minded lay observer is reasonably informed about the context ([54]–[55]).
Scott & Munayallan [2022] FedCFamC1A 44: A judge should not recuse "impulsively or too readily". Substantial grounds are needed ([56]).
Orleans Investments v MindShare Communications [2009] NSWCA 40; Barakat v Goritsas (No 2) [2012] NSWCA 36: Having seen or heard evidence that is later excluded is not generally enough, on its own, to require recusal ([57], fn 30).

🧠 Analysis

Issue

The recording had already been admitted, played and used for extensive cross-examination. After Potter:

Could the wife still rely on the recording in a family law property trial in South Australia?
If not, could the same judge finish the trial, having heard the recording and the evidence built around it?
Who should bear the cost of starting again?

Rule

Interlocutory rulings can be revisited. The earlier ruling was interlocutory, so the Court had power to set it aside ([13]).
No exception, no discretion. If the s 4(2)(a)(ii) "lawful interests" exception is not made out, s 12(1) prohibits use of the recording, and the question of discretionary admission under s 138 does not arise ([17]–[19]).
Exception made out, but use still limited. Even if the exception is made out, s 9(1) limits use to the situations in paras (a)–(h) ([33]–[34]).
State law picked up in federal jurisdiction. Section 79(1) of the Judiciary Act picks up State laws relating to evidence, unless Commonwealth law has "otherwise provided", which means inconsistency ([38]–[43]).
Apprehended bias. A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the decision ([50]). Judges should not recuse too readily ([56]). Hearing inadmissible evidence is not usually enough on its own ([57]).
Costs certificate. Under s 10(3) of the Federal Proceedings (Costs) Act, a party can get a certificate where a hearing is discontinued and a new one ordered for reasons not attributable to any party's fault ([62]).

Application

The High Court removed the discretion the first ruling had relied on

The earlier ruling found the "lawful interests" exception was not made out, then admitted the recording using s 138 anyway ([10]). That followed the Court of Appeal majority in Potter ([16]). But in the High Court it was common ground that, if the exception was not made out, s 12(1) prohibited use of the recording and "no question of any discretionary exclusion (or inclusion)" should have arisen ([17]–[18]). Parker J accepted that the same reasoning applied here: "contrary to the ruling set out in the earlier reasons, there is no discretion to admit the recording" ([19]).

That alone meant the first ruling could not stand on its original basis. But the judge did not stop there ([20]).

The wife might now satisfy the "lawful interests" exception, but the judge did not decide it

Potter recognised a "lawful interest" that had not been recognised in cases of this kind before: a person's right to bodily autonomy and integrity, which the High Court said deserves "the very strongest protection" ([21]–[24]). Parker J said "the same reasoning may apply" here ([25]).

Two points cut in different directions:

What the wife said about her purpose was different from Potter. The wife in Potter made the recording as a reminder not to go back to the relationship ([22]). The wife here deposed that her reason was "for my personal safety and, additionally, to save my marriage". How the recording could achieve either purpose "was not explained" ([26]).
But the test is objective. The High Court said the maker's intentions "may" be relevant, but whether the recording was reasonably necessary is assessed objectively, in the circumstances the person faced at the time ([27]–[29]). And there were similarities between Potter and the circumstances the wife alleges here: alleged previous assaults on multiple occasions, and the parties being separated but still living on the same premises, with an attendant risk of further assaults ([30]).

Parker J concluded only that "it may be" the exception could be satisfied here ([30]). She did not decide the point either way, because a further issue was "fatal" in any event ([31]).

Be careful not to overstate this part. The judgment does not find that the wife was assaulted, and it does not find that her recording was lawful or unlawful on the Potter approach. It holds that the answer does not matter, because the recording could not be used either way.

Lawful to make isn't lawful to use: s 9(1) closed the door

This is the core of the case. Even if the wife's recording was lawfully made to protect her lawful interests, s 9(1) still controlled how it could be used ([32]–[34]). The Court went through the exceptions:

"Relevant action or proceedings" (s 9(1)(d)): this is what allowed use in Potter, because a criminal prosecution falls within the definition. These family law proceedings did not ([35]).
Consent (s 9(1)(b)): the husband did not consent ([36]).
Order of a "judge" (s 9(1)(g)): "judge" means a judge of the Supreme Court of South Australia, so this was unavailable ([36]).
The rest: none appeared to apply, and counsel for the wife "did not contend otherwise" ([36]).

So whichever way the "lawful interests" question was answered, the recording could not be used:

If the exception was not made out, s 12(1) prohibited use.
If the exception was made out, s 9(1) prohibited this use.

A federal court in South Australia is bound by the South Australian restriction

The wife's counsel argued that Potter was about State legislation in a State court, so it did not bind a federal court ([37]). Parker J said this submission "did not engage with" s 79(1) of the Judiciary Act ([38]).

The judge accepted that s 79 does not make every State law apply in federal proceedings. It fills gaps in the laws governing how federal jurisdiction is exercised ([41]).
But s 9(1), as explained in Potter, prevents a recording of this kind being adduced in South Australian courts unless an exception applies. It is therefore a "law relating to evidence", picked up by s 79 and applied to a court exercising federal jurisdiction in South Australia ([42]). The same reasoning applies to s 12(1) ([42]).

Section 138 did not "override" the State Act

The wife's counsel also argued that s 138 of the Evidence Act overrides the Surveillance Devices Act ([43]). The Court rejected this ([44]–[45]):

Section 138 is a discretion about admissibility of illegally or improperly obtained evidence.
Sections 9(1) and 12(1) do something different. They prohibit the maker from using certain recordings, in court or anywhere else, and s 9(1) does so even for recordings that were lawfully obtained.
Because the two operate on different subjects, there was no inconsistency. Commonwealth law had not "otherwise provided", and the judge was not pointed to any other Commonwealth provision that did ([45]).

Letting the wife use it would mean the Court assisting an offence

Whether or not the provisions bind the Court through s 79, they "unquestionably" bind the wife herself, and both create offences ([46]). Allowing her to use the recording would be "this court permitting its own processes to be used in the commission of an offence". That would be an abuse of process and risk bringing the administration of justice into disrepute ([47]).

The order of 29 April 2026 was discharged ([48]; Order 1).

Why hearing the recording meant the judge had to step aside

Parker J raised recusal herself at the 26 August hearing. Neither party argued against it ([49]). Applying Ebner, the relevant category was "disqualification by extraneous information" ([53]).

The judge recognised that judges see or hear inadmissible material all the time, and that this is "not generally sufficient" on its own ([57]). She also accepted that judges should not recuse too readily ([56]). What made this case different was the scale of the exposure ([58]):

She had listened to the recording "on several occasions".
A "substantial part" of the trial had been run on the basis that the recording was in evidence.
That included "detailed cross-examination of the husband based on the recording".
That evidence was "inextricably intertwined" with other issues, including credit, which was likely to matter in resolving many factual disputes.
She had watched both parties' demeanour while the recording was played.

That material "cannot readily be separated from or excised from" the admissible evidence ([58]). A fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to the case now that the recording was excluded ([59]). The trial was aborted and the case referred for reallocation ([60]; Orders 3–5).

This is a point about appearance, not actual bias. The test does not require any conclusion about the judge's actual state of mind ([54(b)]), and nothing in the judgment suggests the judge could not in fact have been fair.

Costs of the aborted hearing: a certificate, not an order against a party

The husband sought a costs certificate under s 10(3) of the Federal Proceedings (Costs) Act if the trial was aborted ([61]). The judge was satisfied the circumstances fell within s 10(3) and granted one ([62]–[63]; Order 6). That provision applies only where the discontinuance and new hearing are not attributable to "the neglect, default or improper act of any party" ([62]). The husband's earlier claim for costs against the wife was not pressed ([12]).

The wife sought no certificate because her trial costs had been funded through the Family Violence and Cross-Examination of Parties Scheme, following an order under s 102NA ([64]).

Conclusion

The recording was excluded because, after Potter, there was no route to use it:

No exception: s 12(1) prohibits use, and s 138 gives no discretion to admit.
Exception made out: s 9(1) still limits use, and family law property proceedings did not fall within any of the permitted uses ([19], [32]–[36]).
Federal jurisdiction: those limits are picked up by s 79 of the Judiciary Act in a federal court sitting in South Australia, and s 138 does not override them ([42]–[45]).
Abuse of process: allowing the wife to use the recording would also mean the Court assisting an offence ([46]–[47]).

Because the judge had heard the recording repeatedly and presided over extensive cross-examination built on it, which was tied up with credit, a fair-minded observer might reasonably apprehend that she could not put it aside. The trial was aborted, the matter was sent to another judge, and the husband received a costs certificate ([58]–[63]).

The judgment does not resolve the underlying property dispute, and it makes no findings about the wife's allegations. Those issues remain for the new trial.

🧠 Take-Home Lesson

Check the surveillance law of the State or Territory where the case is heard before relying on a secret recording. This case turned on the South Australian Act, picked up by s 79 of the Judiciary Act because the Court was sitting in South Australia ([42]). The judgment does not consider other jurisdictions' legislation.
"Lawful to make" and "lawful to use" are different questions. In South Australia, even a recording made lawfully to protect your lawful interests can only be used in the situations listed in s 9(1). Family law property proceedings were not among them ([33]–[36]).

"Lawful to make isn't lawful to use. Before you press play in court, check whether the law lets you use it at all."

Section 138 is not a safety net. A discretion about admissibility does not override a State law that prohibits the maker from using the recording ([44]–[45]).
Using a prohibited recording can itself be an offence. The restrictions bind the person who made the recording, not just the Court ([46]–[47]). Get legal advice before playing, sending or filing a covert recording.
What you say about why you recorded matters, but it is not the whole test. The wife's stated reasons ("personal safety" and "to save my marriage") were unexplained and different from Potter. The test is still objective ([26]–[30]).
A change in the law mid-trial can reopen an evidence ruling. Interlocutory rulings can be set aside, and the Court invited the parties to revisit this one after Potter ([11], [13]).
A bad evidence ruling can cost the whole trial. Hearing excluded material is not usually enough for recusal. But where a recording has been played repeatedly, has driven extensive cross-examination and is tied up with credit, the trial may have to start again before a new judge ([57]–[60]).

"A recording that gets in on the wrong basis can take the whole trial down with it."

Practitioners: when a hearing is aborted through no party's fault, consider applying for a costs certificate under s 10(3) of the Federal Proceedings (Costs) Act ([61]–[63]).
Support workers and McKenzie friends: exclusion of a recording is not a finding that the allegations in it are untrue. This judgment made no findings about the allegations ([6], [58]). People who fear for their safety should get advice about lawful ways to gather and present evidence, rather than assuming a secret recording will be usable.

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