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Are secret recordings admissible in family court?

By August 9, 2019February 23rd, 2024No Comments

Home-recorded audiovisual material is becoming more commonly used in family law proceedings these days, given that we have almost saturation ownership of mobile phones and other smart devices per capita. With the influx of parents wanting to submit secretly-recorded material in their family law matter, what is the situation regarding use of such “evidence” in the family court in Australia?

In many, though not all, Australian jurisdictions, it is illegal to surreptitiously record a conversation with someone. Sometimes, people can be recorded even without their consent, but you still can’t circulate the content anywhere. And to make matters even more confusing, even if a recording is made illegally, the family courts will sometimes still admit the material as evidence.

It all hinges on ‘probative value’ – the ability of the material to act as impartial evidence to contribute to justice being delivered in a trial. For example, in a parenting matter where family violence is alleged, covertly filmed evidence of abuse has been permitted to be introduced into evidence. The question will always revolve around the relevance to a matter of the content of the conversation or interaction.

How is it regulated?

Regulation of the recording of private conversations varies by state and federal legislation. Recordings made without consent are generally unlawful but there are exceptions where it is legal even if one party is unaware recording is taking place or has not given consent.

The Commonwealth’s Evidence Act has a section that prohibits evidence if it was obtained improperly or illegally but can make exceptions based on probative value and the unique circumstances of the case. But specifics of legislation vary around the country.

It’s typically illegal if you are not in the recording (a typical scenario might be when one parent is having a Skype call with the child, and the other parent tries to record it). This may be a tempting option in custody disputes, but it is not legal and may adversely affect how the court perceives your credibility.

Isn’t it legal if you are a party in the recording?

Not necessarily. For example in the ACT it is illegal to use a listening device to record private conversations with another party, even if you are also involved in that conversation (section 4 of the Listening Devices Act 1992). This means that technically you are not able to record any conversations with your ex-partner for family law matters.

Exceptions to the rule

If you are wanting to provide a copy of a recording of a conversation to the family court as evidence in your proceedings if, for example, the other party made threats of violence there are two exceptions to this rule.

Firstly, under section 4(3) of the Listening Devices Act 1992 you are able to record a private conversation if you are involved in that conversation and the recording of that conversation is considered, on reasonable grounds, to be necessary for the protection of that person’s lawful interests.

Secondly, under section 138 of the Evidence Act 1995 a court may still admit into evidence something that was illegally obtained if the desirability of admitting it outweighs the undesirability of admitting evidence that has been illegally obtained.

So although it is technically illegal to record a conversation with another person there may be exceptions to that rule to allow you to admit any recordings into evidence.

The safest bet is always to speak to a lawyer for solid advice. They will know best when recordings or messages can be used as admissible evidence in court, and whether what is being said is going to benefit your case, rather than waste the Judge’s time.

Be warned though. Even if you are involved in the conversation and the evidence has, you feel, probative value, and you believe you have legally recorded it, you may still not be allowed to share or publish it. You are, however, allowed to disclose it to your family lawyer.

How do courts treat secret recordings?

A transcript of a recording will be examined by the court if one party objects to it being introduced into evidence. The court looks at whether the recording was made illegally, if any exceptions to that apply, and ultimately if the family court should include the evidence due to its probative value.

How is “probative value” determined?

The courts consider a range of factors in considering the desirability of admitting the evidence. For example, footage of a parent interrogating children about their other parent is likely to be viewed as harmful to the children and reflect negatively on the recording parent, whereas obtaining video of abusive or other disruptive behaviour by an ex-spouse may be helpful if it contributes to an objective, evidence-based view of reality.

In Australia, outcomes of cases have gone both ways. In one case a father’s recording of himself and the family consultant was judged inadmissible. In another, a father was able to provide recordings of the mother demonstrating instances of child abuse—in this case, the benefits of the evidence outweighed the way it was obtained.

What about recording changeovers?

In one matter a mother experiencing family violence set up a hidden camera and recorded changeovers without the other parent’s knowledge. She was able to have the recordings introduced into evidence in her family law proceedings. Her recordings were not found to contravene the law because they were made to protect her lawful interests (necessary for the purpose of obtaining an intervention order).

However the mother had also made audio recordings of private conversations with her ex, and these were found to be contraventions. Her ex was found to have the reasonable expectation of privacy and her recording of the children was regarded as proof the mother was involving the kids in the parental fight, rather than in protecting her lawful interests against the family violence.

The risk of admitting such evidence

Be careful of recording private conversations with your ex and your kids. Apart from the need for kids to be allowed to trust they can speak freely, there are consequences to making unlawful recordings, including police prosecution, and your family lawyer should advise you of these.

And aside from legal consequences, there is the further risk that the evidence won’t be given any weight anyway, or even that the recording could paint the recording parent in a bad light, almost representing harassment, stalking or domestic violence.

The effect on children – is it in their best interests?

Experts worry about the effect on kids of involving them in acrimonious parental disputes. From the traumatising experience of being incessantly interrogated about the other parent to obtain “proof of their real feelings”, to manipulatively making the child an actor in information gathering about the other parent. Either way, judges tend to see it as adding to the trauma experienced by the child, demonstrating a lack of parental insight.

In some cases parents have gone to extreme lengths to produce recordings to perpetuate hostilities, including covert actions such as sewing listening devices into children’s clothing or cameras into teddy bears. But such tactics can backfire, casting a shadow on the recording parent, painting them as somewhat scheming and ignorant of the child’s needs. Even when recording is done overtly and the child knows it is being recorded, interrogations are damaging, even more so when coercion or coaching to tell lies is involved.

Put simply, secretly filming family members usually doesn’t help your credibility with the family court.

Where to next?

If you have already made such secret recordings and are wondering what to do with them, keep them under wraps and give us a call for initial advice on your next steps – our first half-hour, no-obligation conference is free. We can carefully consider the admissibility of the potential evidence, whether it was obtained on legal grounds, whether it adds value or harms your case, and whether using the recording in any way has potential criminal consequences for you.

Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

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