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Evidence from phones and apps now sits at the centre of many disputes and courts are increasingly deciding how screenshots, messages and covert recordings should be treated.
Introduction
Clients often arrive with a camera full of texts, emails and videos. The legal question is not, 'Can I show the judge my phone?', but whether the material is admissible and persuasive. Australian courts will receive digital evidence when it assists in deciding the real issues, however there are guardrails in place. This article sets out the current position, with practical examples and Australian authorities.
The baseline: relevance, fairness and the family law context
Family law follows the ordinary rules of evidence. Yet, in child-related proceedings the court may disapply many provisions of the Evidence Act 1995 (Cth) and then give admitted material the weight it deserves. In all proceedings, the court can still exclude material that is unfair or illegally obtained (see section 138 of the Act). The touchstones are relevance, probative value and overall fairness to the parties and children.
State and Commonwealth laws intersect
Australia's surveillance and privacy settings differ by state. For example, in Queensland, a party to a private conversation may lawfully record it in some circumstances, while other jurisdictions require all-party consent. Telephone interception is separately governed by Commonwealth law. This matters for both admissibility and exposure to criminal risk. Always check the relevant surveillance Act in your state before recording anything.
Illegally or improperly obtained material: the section 138 balancing exercise
Even where a recording breaches a surveillance law, the court may admit it if the desirability of doing so outweighs the undesirability of the breach. Factors the court will consider include the gravity of the impropriety, whether it was deliberate, whether other proof exists, and the importance of the evidence to determine what arrangements are safe for the child. Recent decisions show both admission and exclusion depending on those factors.
Imagine a covert audio recording of a parent threatening self-harm in front of their child, made in a state where such recording is prohibited. This would likely be admitted despite the technical breach, because it directly relates to risk and the best interests analysis. By contrast, a hidden phone placed in a school bag to capture evidence at the other parent's home is likely to be excluded and may trigger adverse findings about insight and boundaries.
Covert recordings: sometimes admitted, often risky
Parties increasingly present audio or video captured without consent. Admissibility turns on how the recording was made, what it proves, and whether any unlawfulness is outweighed by the need to decide the real controversy.
In Coulter & Coulter (No.2) [2019] FCCA 1290, the Court excluded secret audio of private conversations between the father and children (while admitting the mother's video of handovers). The audio contravened South Australian surveillance law and, under the section 138 discretion, the undesirability of admitting it outweighed its limited utility.
In Nagel & Clay [2020] FamCA 326, the Court excluded multiple hours of the mother's secret recordings, finding low probative value, unfair prejudice, and issues with the disclosure of the evidence.
In Garner & Garner [2016] FamCA 630, recordings of the husband's abusive language were admitted and treated as evidence of family violence.
Take an example where a parent secretly records a heated doorstep changeover. Expect the court to ask:
- Was the recorder a party to the conversation?
- Does the state's surveillance Act prohibit the recording?
- What specific fact does the clip prove?
If the recording fairly shows behaviour relevant to safety or capacity to co-parent, it may be admitted. If it intrudes on a child's private conversation with the other parent or breaches surveillance laws it is likely to be excluded or given little weight.
Authenticity and context matters
Screenshots of SMS, WhatsApp or Instagram messages routinely appear in affidavits. The key issues are authenticity (who sent it and when), completeness (no cherry-picking) and context. Courts are wary of selective quoting. Provide the native files where possible, preserve metadata and annex full threads. In parenting matters, the court may admit informal material and then decide how much weight to give it; in property or contravention proceedings, expect a strict Evidence Act analysis and objections if authenticity is unclear.
Clients often send a single screenshot of an abusive text from the other party as an alleged example of family violence. This provides no context. It is better practice to export the full conversation, identify the phone number or handle, explain the circumstances, and swear to the process used to capture the data. If the allegation is controlling behaviour, pair the messages with corroborating evidence such as bank alerts, emails or third parties observing the behaviour.
Five practical tips for parties
- Preserve native files and make a clean, chronological bundle; do not rely on isolated screenshots.
- Assess state surveillance laws before making any recording; do not record unlawfully.
- Tie each digital item to a live issue (for example, risk, capacity or credibility); do not annex hours of irrelevant audio to affidavits.
- Remember that the rules of evidence are less strict in parenting proceedings, but weight still matters; do not assume 'admitted' means 'decisive'.
- Prepare to address section 138 if there is any impropriety; do not ignore fairness concerns or the other party's privacy.
Concluding thoughts
Australian courts will use technology to uncover the truth, but admission is not automatic. The safest path is to collect digital evidence lawfully, present it fairly and in context, and focus on what assists the court in deciding the child's best interests or achieving a just and equitable outcome in financial matters.
If you need advice on collecting, presenting or challenging digital evidence in a family law matter, please contact one of our experienced family lawyers.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.
