Some marriage separations are amicable, and many are not. As family lawyers, we’re often asked by our clients whether recording conversations, with their former partners, on their mobile phones can be used as evidence in family law proceedings.
In some cases, clients are aware they’re routinely being recorded by the other party and want to know their legal rights, as this behaviour is often non-consensual, intimidating and threatening.
In general, it is an offence in Victoria to record a private conversation without the consent of each party to the conversation. However, the Family Court will allow private recordings to be admitted as evidence in some circumstances. The legal position on this issue is typically “it depends” or “yes, and no”. At first glance, these two positions seem to be at odds with each other, so we will attempt to unpack it further below.
The first thing to understand is that family law is governed by the Family Law Act 1975 (Cth), and a variety of rules, regulations and case law regarding family law, evidence law and privacy laws. The fact that there are both Commonwealth legislation and state-based legislation that come into play further complicates things. The resulting matrix of law and case law is challenging to navigate, but ultimately there are some general guidelines that will help answer the question of whether a privately recorded audio file or video file may be used as evidence in a family law matter.
Admissible but useful?
In Victoria, the Surveillance Devices Act 1999 prohibits the recording of audio conversations without the consent of all parties unless it is reasonably necessary for the purpose of protecting the lawful interests of the party who records the conversation.
The Family Court will consider a number of factors when deciding if and how to allow recordings into Court as evidence. Section 138 of the Evidence Act 1995 (Cth) allows a Court to admit evidence that was illegally obtained if the desirability of making it admissible will outweigh the undesirability of admitting evidence that is known to have been illegally obtained.
Examples of Family Law cases involving recordings
In recent years, the Family Law Courts have determined a number of matters where it was argued that recordings should be submitted as evidence. Below is a sample of some recent cases.
Nagel & Clay (2020) FamCA 326
In Nagel & Clay, the Family Court had to decide whether to exercise its discretion to exclude, or limit, certain audio and digital recordings as evidence under section 69ZX(2) of the Family Law Act in the course of a parenting dispute.
This case involved property and parenting matters involving three children. The mother’s trial Affidavit included various digital recordings of the father’s behaviour at changeover and prior to separation. The father was unaware that he was being recorded by the mother. Her lawyers submitted the trial Affidavit to a single expert for the purpose of preparation of an expert family report, prior to the father having an opportunity to object to the mother using such evidence. The mother stated that she made the recordings as she believed that they would assist her to obtain the parenting orders that she wanted.
The Court considered the admissibility of the recordings. In doing so, it considered the relevance of the recordings. In assessing the 8-hours of footage recorded by the mother, the Court found that large sections of the recordings were inadmissible on the basis that it was irrelevant to issues in dispute in the proceedings. It found that some short incidents, which could be said to portray the conduct of the father unfavourably, were relevant and therefore admissible.
Once the Court considered the relevance of the digital recordings, it turned to considering the probative value of the evidence (i.e., whether the evidence was sufficiently important and beneficial to prove either party’s case at the Trial.) The Court found that the relevant sections of the recordings had limited probative value as well as little importance in the proceedings. Prior to filing her trial Affidavit the mother had not disclosed the existence of the recordings under Rule 13.14 of the Family Law Rules and the Court considered its discretion to exclude the recordings under Section 69ZX(2) of the Family Law Act in light of the mother’s breach of the Rules.
Ultimately, the Court in Nagel v Hay used its discretion to exclude the digital recordings from the Trial and took into account factors that included the best interests of the children and the limited relevance and probative value of the recordings when exercising its discretion.
Gin & Hing (2019) Fam CA 779
In the matter of Gin & Hing, the father sought to rely on the transcription of 13 separate mobile telephone calls and Skype conversations, mostly without the consent of the persons whose voices were discernible in the recordings. The recordings, in this instance, related to several important questions of fact that were involved in the determination of parenting issues, under sec 60CA of the Family Law Act, that is, the child’s best interests being the paramount consideration in making parenting orders.
The mother challenged the admission of the transcription of the 13 sound recordings into evidence on the basis that they were unfairly prejudicial to her.
Justice Wilson allowed the transcription into evidence on the basis that the “probative value of receiving the evidence outweighed the prejudice associated with its receipt”. He found that having the transcripts of the recordings in evidence enabled him to have a fuller picture of the totality of the evidence so as to better enable him to adjudicate on the threshold question, namely, the best interest of the child”.
Jasper & Corrigan (No. 2) (2017) FCCA 1467
In the matter of Jasper & Corrigan, the parties agreed that the wife had made a recording of the husband’s conversation without his knowledge or consent. The question that the Court was faced with then became whether or not to allow the wife to use the recording as evidence. This is called “admissibility of evidence”. As the matter was heard in NSW, Judge Altobelli considered the NSW legislation in relation to the issue of illegal recordings. He found that the wife had no other options available to her, in terms of evidence, therefore the use of the recordings as evidence was “reasonably necessary”. His Honour considered that when deciding on questions of admissibility, the Court would “exercise its discretion in allowing the evidence to be led”.
He further clarified that, “what needs to be made very clear to all parties in this case, and perhaps especially to the Applicant, is this: all the Court is ruling on is admissibility of evidence. It is not ruling on the weight that will be given to evidence. Evidence might be admissible, but it might not receive much weight.”
Therefore, the upshot of this is that even when a recording does make its way to a Judge’s ears in a family law matter, the Court may still disregard it, or interpret it in a way which had not been intended. For example, the Court may well decide that one party had been “set up” by the other in order to create an incorrect impression of what had occurred.
Is the recording a “set up”?
In the matter of Guzniczak & Rogala [2017] FamCA 758, Judge Benjamin found that the husband’s recordings of the wife were an example of “exaggeration of evidence”, and “an example of the husband adding to evidence”.
In this matter, prior to separation the husband made recordings of his wife without her knowledge or consent as he anticipated that family law proceedings would be necessary, and he intended to use those recordings as evidence. In the Judge’s view, the husband had “goaded” the wife and had set up traps where he would present himself as a victim and the wife as the aggressor. His Honour commented: “It was theatrical and manipulative behaviour. The parties had been in a relationship for many years’ and I am satisfied that the husband knew what ‘buttons to push’ to upset or aggravate the wife.”
In short, the recording was admitted as evidence, but it was not interpreted the way the husband probably would have preferred. This is a reminder that, in family law matters, credibility of a party has bearing on the Judge’s final decision in the matter.
Recordings in family violence situations
If you have been the victim of family violence and have made recordings of violence being committed against you, the Court will consider your difficult circumstances. Family violence is defined by section 4AB of the Family Law Act 1975 (Cth) as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
In the matter of Garner & Garner [2016] FamCA 630, Judge Berman accepted recordings made by the wife of the husband swearing at her, calling her names and threatening suicide as admissible evidence. While these recordings were made by the wife without the husband’s knowledge or consent, it was given to the Court with the consent of both parties. Judge Berman stated that, “[t]here is no doubt that the father’s language as recorded in the transcripts would satisfy the definition of family violence”. His Honour considered the importance of family violence in relation to the interests of the children of the parties concerned. Family violence is an issue which was front and centre in the Court’s deliberations. Where family violence is involved in family law matters, we can expect it to influence the kinds of orders the Court will ultimately make in relation to the children.
In these circumstances, recordings or even transcriptions of recordings given with the consent of both parties are more likely to be admitted into evidence by the Court, especially in light of how difficult it usually is to obtain evidence of family violence.
So, should you record people for family law evidence?
It is important that you don’t create evidence that you think makes your family law case “look good”. Judges are highly educated and skilled at scrutinising evidence. It is likely that if you have padded your evidence, led your ex-partner on, or attempted to paint yourself in a favourable light, the Court will see right through it.
Also, as stated above, it is illegal in Victoria to record someone without their consent. Doing so may have criminal implications. If you believe that any incidents took place in a public place with CCTV, for example, speak with your lawyer about obtaining this evidence.
Recordings made without the person’s knowledge or consent is rarely going to be definitely helpful to your family law proceedings. There have been a multitude of family law cases where the Court has allowed the recordings as admissible evidence but then made a negative finding against the person who made the recording due to that person showing they had provoked the behaviour in the recording.
Most importantly, whenever you seek to ask that a private recording be allowed as admissible evidence, you should make sure that you are not opening yourself up to becoming liable to offences under the Surveillance Devices Act 1999 (Vic), for example, which makes it a criminal offence to use a listening device to record a private conversation.
While the state legislation lists the exception where the person who made the recording uses it in a way that is reasonably necessary for the protection of their own lawful interests, ultimately this will be a matter of interpretation. Therefore, there is no hard and fast answer about whether, for instance, a recording of an alleged incident of family violence will definitely not expose the person who made the recording to criminal consequences.
Due to the complex matrix of laws and case law, the distinction between different scenarios is nuanced. For example, the Victorian legislation states that a private recording may not be unlawful if you are in fact a party to the conversation, meaning there is a distinction between recordings of your ex-partner saying something to you and recordings of your ex-partner saying something to the children in your presence. Another example will be that a video recording of your ex-partner during changeover for your personal protection is likely to be treated differently to an audio recording of a conversation between you and your ex-partner for other purposes.
If you are experiencing family violence and are in immediate danger, the most important step to take is to call the police (000) and seek safety and refuge. If you feel unsafe and your ex-partner discovers that you have recorded them, it may inflame the situation and place you in further danger.
If you have a recording or believe that you have been recorded, bring this to the attention of your lawyer so this evidence can be dealt with in the most appropriate manner. Even though the recording itself may ultimately not be used in the family law proceedings, it is a good idea to at least let your lawyer know that this may become an issue that could come up in negotiations or in Court proceedings. Recordings remain a difficult area for both parties and Courts to deal with.
This article was first published on 18 October 2018 and last updated on 4 March 2022.
