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:
- the probative value of the evidence
- the importance of the evidence in the proceedings
- and the difficulty of obtaining the evidence without impropriety or contravention of an Australian law
- 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.
