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Family court and secret audio recordings: Judges ‘keeping floodgates closed’

By October 27, 2021February 23rd, 2024No Comments
secret audio recordings

Secret audio recordings: In our era of smart devices it’s so easy to surreptitiously record others. And for some parents going through a split, it can be very tempting to secretly record the other in an attempt to gather potential “evidence” for a family court case. The rules on secretly recording other people can be confusing and vary slightly around the country. But in jurisdictions where it is illegal to surreptitiously record a conversation with someone, criminal penalties can apply. And yet, the family courts frequently find parties attempting to bring illegally made recordings in as evidence in their matter. In some, limited cases, illegal secret recordings may still be allowed into evidence due to their probative value. But in other cases, courts have rejected the recordings and been condemning of the recording party. It’s pointed out that there is a need to “keep the floodgates closed”, so that the courts are not inundated with vengeful ex-spouses armed with secret recordings of each other. Let’s take a closer look at the issue of family court and audio recordings.

“Calculated, deceitful, betrayal”

In a recent matter (pseudonymised as Neame & Neame), the judge was quite scathing of a father who had secretly recorded arguments with his spouse as his marriage deteriorated. The judge refused the father’s request to enter his secret recordings into evidence and was highly critical of the father’s actions.

Are secret audio recordings always illegal?

In many jurisdictions in Australia, 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.

It’s very likely to be illegal if you are not in the recording (a scenario might be when a parent is having a Skype call with the child, and the other parent tries to record it). This may be a tempting option in parenting disputes, but apart from being illegal, it can also adversely affect how the court perceives your credibility.

But contrary to popular belief, even if you are a party in the recording, it can still be illegal, too. 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.

So it’s illegal…but can it still be admitted into evidence?

If you are wanting to provide a copy of a secret audio recording to the family court as evidence in your proceedings (if, for example, the other party made threats of violence) it may be possible for you to do if, for example, if the recording is considered, on reasonable grounds, to be necessary for the protection of your lawful interests.

In the Neame & Neame matter however, the court rejected this argument by the father, saying instead:

“It was in the view of the Court opportunistic and a deceitful recording made by the father during the climatic stages of the breakdown of the parties’ relationship.”

Secondly, a court may still admit into evidence something that was illegally obtained, if the desirability of admitting it outweighs the undesirability of how it was illegally obtained.

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.

But as we can see in Neame & Neame, even material that purports to be evidence of a party’s violent behaviour will need to satisfy the court that it actually does have probative value (that is, what does it prove, if anything). In this matter, the judge said:

“Having listened to the recordings, the evidence is not particularly probative. It is evidence of a married couple engaged in a verbal argument at the end of their relationship…The recordings provides an insight into the high level of distress and dysfunction taking place between a married couple where infidelity has come to light and the mother is struggling to cope. Its importance is limited if not lacking.”

As part of the discretionary decision on whether to allow illegal material into evidence, the courts also take into account other factors, including looking at how improperly the material was obtained. In this matter, the court found that the impropriety of the invasion of the mother’s privacy was significantly grave. The father’s actions were controlling and deliberate: knowing that he was recording the interactions, he tried to paint himself in the best light, while “attempting to put words into the mouth of the mother”.

Finally, the judge noted that family court proceedings are typically emotionally charged and acrimonious. He said that “this Court should do nothing that might encourage parties in the middle of the disintegration of their relationship to illegally record conversations for use in proceedings” in the family court system. This is what is known as the “floodgate argument”—the aim is to prevent a surge in similar applications to adduce secret recordings into evidence.

A similar situation recently played out in a Canadian courtroom, with the judge there also strongly discouraging family courts from allowing secret recordings into evidence, unless children are at risk.

The Ontario judge noted there was enough mistrust and conflict already in family court, describing the typical “corrosiveness of matrimonial litigation”. He stated it was “dangerous” for parties “to treat their dealings as if they were living under the Stasi in East Germany”.

The judge described courts allowing secret audio recordings into evidence as “rewarding one party’s attempt to secretly spy on the other” and called on courts to reject such evidence.

He also noted that mediation is based on rebuilding trust between parties and that secret recordings can only destroy trust. With the push on to get more Australians out of litigation and into successful mediation, that’s a good point to note too.

Key takeaway?

It’s best to avoid making secret audio recordings as potential evidence. If you already have made recordings, you should seek legal advice from your family lawyer, who can consider the admissibility of the potential evidence, whether it was obtained legally, whether it could add value to or harm your case, and whether using the recording in any way has potential criminal consequences for you.

You can find the Neame & Neame judgment here.

For assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law 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 Family Law.


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