With the growing use of technology today, the issue of the use of audio and visual recordings has emerged as a growing question in family law matters.

At a time where most of the population carry a mobile telephone that doubles as a camera and voice recorder, it is tempting for clients to simply press record on their phone and obtain the evidence that they believe supports their case. It is not uncommon for clients to approach their solicitors and instruct that they have taken a recording of an event and then request that their solicitor produce that recording as part of the evidence in the Family Law Proceedings.  The question then becomes, is that recording admissible in evidence?  And what factors does the Court look at when deciding whether or not that recording will form part of the evidence?

There is both Commonwealth legislation (Telecommunications (interception & Access) Act 1979)and State legislation (Surveillance Devices Act 1999 Vic) that deals with whether a recording is lawful and unlawful.

There can be significant penalties involved in using unlawful recordings and you must always seek legal advice prior to attempting to use the recordings in any family law proceeding.

Recordings that may be seen as unlawful include:

  • Listening to or recoding by any means a communication in its passage over the telecommunications system without the knowledge of the person making the communication;
  • Recordings obtained by listening devices installed in telephones of phone/wire taps;
  • Intercepting communications such as text messages, speech, music, listening into Skype;
  • Live or real time communications such as passing over the Internet;
  • In Victoria is it prohibited to install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party without the express or implied consent of each party to the conversation

There are exceptions in the Victorian legislation for example even if the recording was obtained unlawfully, whether it was necessary for the protection of the lawful interests of the person making the publication or communication.

In terms of admitting it into evidence in Family Law matters the Court does have the discretion pursuant to s.138 of the Evidence Act 1995 to include improperly or illegally obtained evidence.

If it is established that the evidence was improperly obtained or in contravention of an Australian Law, the Family Courts cannot admit the evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.  The Court will consider several factors pursuant to s.138 of the Evidence Act in considering the desirability of admitting such evidence.  The Court will look at the following (amongst other) factors:

  • The probative value of the evidence;
  • The importance of the evidence;
  • The nature of the evidence; and
  • The gravity of the impropriety of the contravention and if it was deliberate or reckless.

The Courts also have General Discretion to exclude evidence pursuant to s. 135 of Evidence Act 1995, if “the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or… result in an undue waste of time.”

So even if it can be established that the recording is admissible, should you make a recording?

The Case Law on this section varies depending upon the facts and circumstances of each case however recordings are often not viewed positively and often have negative implications for the person making the recording and trying to admit the evidence.

When evidence seeks to establish the violent or aggressive behaviour of the other party, or recordings of children making statements the Court may take the view that evidence is not an accurate depiction as the party making the recording is invariably “on their best behaviour” and/or the children may well have been coached prior to the recording

If parties are in possession of a recording they should consult their solicitor and carefully consider if there are any real benefits to their case of introducing the recording into evidence and to discuss the possible sanctions involved in doing so.

While the different circumstances of each client, case and the context of recording will be considered, parties should be very wary of making such recordings. The case law suggests that the introduction of a recording into evidence often backfires on the party who is seeking to rely upon it and there are possible criminal sanctions that may apply if it is not introduced with proper safeguards against incrimination.

Always obtain specialized legal advice prior to attempting to use this evidence.

Susan Scott-Mackenzie

Susan Scott-Mackenzie

Senior Associate, Accredited Family Law Specialist

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