With audio recording technology only being a mobile phone away, it is becoming increasingly common for clients to ask whether they can use audio recordings in their family law litigation, whether it be for parenting or property matters.
While it may seem like a good idea at the time to want to use audio recording as evidence, parties should approach the use of these recordings very cautiously.
Before even considering whether to make a recording parties need to weigh up a number of important questions such as whether the recoding is actually legal to make, whether a court will actually allow the recording to be used in evidence, how will the court view the making of the recording and the obligation to disclose the recording even if it does not achieve its original purpose.
What the law says
Each Australian State has slightly different laws regarding the recording of conversations. In Queensland it is legal for someone to secretly record a conversation with another person if they are a party to the conversation. In other states however it can be an offence to record a conversation without the consent of the other parties.
Section 138 of the Evidence Act (Cth) 1995 gives the family courts a broad discretion or choice to exclude evidence which is obtained improperly or illegally. If a recording is obtained in breach of the relevant state legislation then a family court may well decide to exclude such evidence. In making that decision a court weighs up many factors including the following:
The family courts also have a more general power under s135 of the Evidence Act to exclude evidence if:
The Family Law Act also provides the court with wide powers in relation to evidence. Section 69ZN allows courts in children’s matters to accept evidence which would otherwise be excluded. This is because children’s proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and neglect as well as safeguard the parties to the proceedings against family violence. The safety of a child, under the Family Law Act, is more important than rigidly following the rules of evidence which might exclude evidence of abuse.
What the courts say
Generally, the family courts are more willing to include secret recordings as evidence in cases involving children or domestic violence. Probably the most important reason for this is that it is normally very difficult for a party to provide evidence of domestic violence from behind closed doors, particularly when the perpetrator may present a friendly manner in public.
The courts however are reluctant to accept into evidence recordings of the children answering questions from an adult in the proceedings, for the simple reason that they may have been coached in providing the answers.
There have been many family law cases which deal with secret recordings. Some of the more notable include the following:
Badger & Badger & Ors  FMCAfam 124. In this case a litigation guardian recorded a telephone conversation. The recording was not admitted into evidence.
Janssen & Janssen  FamCA 345. This case involved allegations by the mother of domestic violence carried out by the father. The mother recorded a conversation with the father in which he admitted to making violent threats against her. Justice McClelland said
“the Father may have had a public face very different from his private fac….. the Father may be charming and delightful in company, and intimidating and frightening in the home, as alleged by the Mother”
Justice McClelland also noted that “It is notoriously difficult to obtain evidence of family violence which takes place behind closed doors.” in deciding to accept the recording of the mother as evidence.
In the particularly notable case of Simmons & Simmons  FCCA 304 the mother planted a recording device on the child when they went to spend time with the father. The judge accepted the recordings into evidence. However, the judge was scathing of the behaviour of both parties, saying:
on the material before me and , in particular the tape recordings, I am satisfied on the balance of probabilities that the father did act in this way. This is insightful and selfish behaviour…Similarly however, the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour. The actions of both these parents are at best naive and at worst a form of child abuse. in this sense they are equally culpable.
In Coulter & Counter (No. 2)  FCCA 1290 the mother recorded the changeovers of the children going into the father’s care. The mother alleged the father was being intimidating, abusive and coercive. The court agreed that the recordings could be allowed into evidence because the mother had fears for her personal safety and was concerned that the children wee being exposed to family violence.
Duty of Disclosure – No Surprises
Each party to a family law proceeding has a duty of disclosure. This means that they must disclose to the other party all information which they have in their possession which is relevant to the proceedings, both in their favour and detrimental. This duty extends to audio recordings. Parties are not permitted to keep such evidence secret and only surprise the other side in court. If a party has a recording, it must be disclosed to the other side. Whether it can be used as evidence in court will then be decided by the judge after weighing up the relevant legislation and case law.
Should you use secret recordings?
The answer to this question is maybe, maybe not. It depends on the circumstances. If your case relates to proving that family violence has occurred, or that children are at significant risk, then the courts may be more sympathetic to including your recording as evidence.
In other cases, the courts will potentially take a much more critical approach and view your actions in a negative way. As in the case of Simmons and Simmons above the court viewed the placing of a recording device on a child as potentially being child abuse. The message from these cases is that the benefits of a recording may be far outweighed by the stern criticism and negative reaction of the court.
If you would like to know more about this topic, or any other family law issue, then please call to make an appointment.
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