Ashley Lovelock

 

August 2022 | Ashley Lovelock

A question frequently asked by clients is whether they can rely on recordings they have taken on their phone of their ex-partner or children and whether such recordings can be put into evidence and considered by a Judge in their final hearing.

What does the legislation say?

In NSW the recording of a private conversation is prohibited under the Surveillance Devices Act 2007 (NSW)[1]. The Act states that a person must not knowingly install, use or cause to be used or maintain a listening device, to overhear, record, monitor or listen to a private conversation to which the person is not a party or record a private conversation to which a person is a party and such conduct constitutes a criminal offence.

The Evidence Act 1995 (Cth) provides a basis for the consideration for the admissibility of evidence in Australian family law proceedings. That legislation states that evidence which is improperly obtained or is in contravention of Australian law is not admitted unless the desirability of admitting that evidence outweighs the undesirability of admitting evidence that has been obtained in the way which the evidence was obtained. [2]The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party, or misleading or cause or result in undue waste of time. That means in simple terms that the Court considers that it is very important. [3]

What is the Court’s view?

The Family Court (now the Federal Circuit Court and Family Court of Australia) has historically taken a conservative view and has usually denied such recordings into evidence. However, the Court has considered the issue for example in the below cases:

    1. In  Huffman v Gorman (No 2) [2014] FamCA 1077 the Court considered whether to allow a recording into evidence despite it being illegally obtained. The dispute was in relation to parenting. The father alleged that the mother was violent throughout their relationship. The mother denied his allegations on the basis that the father never reported his concerns to the police. During the proceedings, the father produced a number of recordings of the mother during the relationship. In coming to his conclusion the Judge noted the “notorious difficulty to obtain evidence of family violence, which often takes place behind the closed doors” and allowed the evidence on the basis that the best interests of the children are paramount and outweighed the undesirability of admitting evidence which was unlawfully obtained.
    2. In  Coulter v Coulter (No 2) [2019] FCCA 1290 the mother secretly recorded the father’s attendance during the change-over at her home and secretly obtained two audio recordings between him and the children.  The Court found that it was not improper for the mother to video record at the changeovers as she had a legitimate concern for her safety and the Court was satisfied in her evidence that at the time she was having ongoing difficulties with the father. However, the Court did find that the private recordings of the father’s conversations with the children was a breach of privacy and the audio conversations with the children were excluded from evidence.
    3. In Nagel v Clay [2020] FamCA 326, the mother exhibited over 8 hours of digital and audio recordings of the father’s behaviour at changeovers and at separation to her evidence. The father was unaware that he was recorded. The mother asserted that the recordings supported her allegations that the father was “verbally and physically violent towards her”. The father asserted that the 8 hour recording only represented a snapshot of over 400 changeovers which took place and therefore was not accurate. The Court found that the evidence did not hold enough probative value to outweigh the danger that the evidence may unfairly prejudice the father and mislead the court and therefore was excluded from evidence.  

There is no “general rule” to decide when the family Court will admit such recordings into evidence. It may be  that in cases where family violence is alleged, the Family Court is more open to exercising its discretion to allow evidence to be admitted which might otherwise not be permitted, but it is a careful balancing exercise.

 

If you have any questions or concerns do not hesitate to contact the Harris Freidman office to help walk you through the process and further discuss your legal obligations.

 

[1] Surveillance Devices Act (NSW) s7.

[2]  Evidence Act 1995 (Cth) s 138.

[3] Evidence Act 1995 (Cth) s 135.