Use of audio and video recordings in Family Law cases

It's no secret that we are glued to our smart­phones. Thanks to tech­no­log­i­cal advance­ments, we have a 'one stop shop' device at our fin­ger­tips, which includes access to audio and video recordings.

For many years, Fam­i­ly Lawyers have been pre­sent­ed with secret record­ings tak­en by clients in the hopes that the footage will form valu­able evi­dence against their for­mer spouse. The prob­lem with these record­ings, is that they are not always the 'Gotcha!' moment that clien­t's hope for.

Issues with Secret Recordings 

In New South Wales, the Sur­veil­lance Devices Act 2007  (NSW) pro­hibits, the use of lis­ten­ing devices to record a pri­vate con­ver­sa­tion to which the per­son is, or is not, a par­ty. A lis­ten­ing device is defined as 'any device capa­ble of being used to over­hear, record, mon­i­tor or lis­ten to a con­ver­sa­tion or words spo­ken to or by any per­son in con­ver­sa­tion' and a smart­phone falls square­ly with­in this definition. 

There are excep­tions to the pro­hi­bi­tion such as where a par­ty to the con­ver­sa­tion gave their express or implied con­sent to the device being used or where the record­ing is "rea­son­ably nec­es­sary for the pro­tec­tion of the law­ful inter­ests of that prin­ci­pal par­ty".

It's very impor­tant to think care­ful­ly before you hit record as the max­i­mum penal­ty for breach­ing s 7 of the Act is 100 penal­ty units ($11,000), five years impris­on­ment, or both!

Pro­ba­tive Value

Sec­tion 138(1) of the Evi­dence Act 1995  (Cth) pro­vides that evi­dence obtained in con­tra­ven­tion of an Aus­tralian law is not to be admit­ted unless the 'desir­abil­i­ty' of admit­ting the evi­dence out­weighs the 'unde­sir­abil­i­ty' of doing so. 

In deter­min­ing whether to admit evi­dence the Court will consider:

1. the pro­ba­tive val­ue of the evidence
2. the impor­tance of the evi­dence in the proceedings
3. and the dif­fi­cul­ty of obtain­ing the evi­dence with­out impro­pri­ety or con­tra­ven­tion of an Aus­tralian law
4. whether the record­ing will be 'unfair­ly prej­u­di­cial' to a par­ty. Note: this is dif­fer­ent to the record­ing being dam­ag­ing to a par­ty's case. 

Par­ent­ing Proceedings

In the case of Gin & Hing  [2019] Fam­CA 779, the Fam­i­ly Court of Aus­tralia deter­mined that the most impor­tant con­sid­er­a­tion, being the best inter­ests of the child in par­ent­ing pro­ceed­ings, engaged the exemp­tion for 'pro­tec­tion of a legal inter­est' and there­fore the record­ing was not in con­tra­ven­tion of the Act. In that case, the record­ings were con­sid­ered to pro­tect the par­ty's legal inter­est as it was used to address alle­ga­tions of fam­i­ly vio­lence, and the record­ings were 'pro­ba­tive'.

In cir­cum­stances where there are alle­ga­tions made in rela­tion to Fam­i­ly Vio­lence and the par­ties are seek­ing orders in rela­tion to par­ent­ing mat­ters, the Court may take extra cau­tion and have high­er regard to evi­dence that bears an impact on the chil­dren's best interests. 

Not a 'Gotcha!' moment

Whilst there are many instances where the Court will admit audio/video record­ing evi­dence, there are also many cas­es where notwith­stand­ing allow­ing the evi­dence, a neg­a­tive find­ing has been made against the 'recorder'.

It is impor­tant that you do not cre­ate evi­dence that you think makes your fam­i­ly law case 'look good'. Judges have a wealth of expe­ri­ence and are skilled at scru­ti­n­is­ing evi­dence. It is like­ly that if you have 'set up' your evi­dence, led your ex on, pro­voked an alter­ca­tion or made the record­ing in an attempt to por­tray your­self in a favourable light, the Court will see right through it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.