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When is it legal to record an ex-partner in family law cases?

By January 23, 2017No Comments

By Kate James

Text messages, Face Time calls, Skype, Whatsapp, Facebook – all forums where ex partners can now go to discuss parenting arrangements, vent on the new girlfriend, nag over who is going to pay the mortgage, or attack each other regarding property settlements. As Family Lawyers we often see clients trying to bring in screenshots of text messages, or audio files of recorded telephone calls in order to prove something about their ex. But on the other side of the fence we’ve seen clients who have been caught out by ex-partners recording them when they didn’t know what they were saying could be used as evidence against them.

So when it is legal to record an ex-partner in a family law matter?

While there are some rules of thumb to answer this question, the best option 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.

That said, here are a few guidelines:

It is illegal to record a conversation when you are not involved in the conversation. This might come up 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.

It follows that it is legal for someone to record a conversation if they are involved in the conversation. If you are part of the conversation, it doesn’t matter whether it is face to face, by telephone or through another messaging service, you can record it. It also doesn’t matter whether there are other people in the conversation who are unaware it is being recorded, i.e. your ex.

However just because it is legal to record it, doesn’t mean it can be used as evidence. There are restrictions around who you can disclose a recorded conversation to. Luckily, your lawyer is top of the list of people who you can share it with, and also the best person to give you advice on how to proceed next.

A final word of warning – while it can be legal to record a telephone or Skype call for instance, it may not always be the best path in family law matters. In many instances recordings don’t provide useful evidence to the court or help the judge make a decision. Wasting the court’s time by exhibiting unhelpful recordings can set you back in a family law case and give the court an unfavourable opinion of you. On the other hand there may be instances where a recorded conversation can help the court to see the real issues at hand – such as in family violence matters.

Before you try and record your ex and submit it as evidence to the court, or if you have been recorded by your ex, the best option is always to see a lawyer who can give you advice based on your circumstances and help you to decisively resolve your family law matter.

If you are looking for advice and would like to book an appointment with Alliance Legal, please call (02) 6223 2400.



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