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Sam Fung

Published: 07 July 2020
Author: Samuel Fung

Private recordings as evidence in Family Law. Yes or No?

Generally, it is an offence in Victoria to record a private conversation without the consent of each party to the conversation.

However, it also remains true that the Family Court will sometimes allow private recordings into court as admissible evidence.

At first glance, these two statements seem to be at odds with each other, however we attempt to unpack them for you below.

Our family lawyers are often asked if privately recorded conversations are allowed in a family law matter. The legal position on this issue is “yes, and no”. We attempt to unpack this a little below.

The first thing to understand is that family law is governed by not only the Family Law Act 1975 (Cth), but also a whole subset of rules, regulations and case law regarding family law as well as 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 in a family law matter.

Admissible but useful?

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.

In the matter of Jasper & Corrigan (No.2) [2017] FCCA 1467 (23 June 2017), 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, “[w]hat 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.”

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 person being "set up"?

In the subsequent matter of Guzniczak & Rogala [2017] FamCA 758 (19 September 2017), 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 that 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. Note His Honour’s comment on this behaviour – “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. A reminder that, in family law matters, credibility of a party is something that does have a bearing on the judge’s final decision in the matter.

Are family violence examples different?

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 (5 August 2016), Judge Berman accepted recordings made by 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 matter, we can therefore 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 by the court, especially in light of how difficult it usually is in obtaining evidence of family violence.

So, what should I do?

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, lead 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, speak with your lawyer about obtaining this evidence.

In summary, recordings that are 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 have in fact provoked the behaviour in the recording. In other circumstances, the Court considers the way in which the children were involved in a recording, as exposing children to conflict between parents or situations of family violence, or directly involving children by prompting them to make a certain comment about the other parent, is not at all in their best interests.

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. Although 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 so there is no hard and fast answer to say 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 different to an audio recording of a conversation between you and your ex-partner.

If you are experiencing family violence and are in immediate danger, the most important step to take is to call the police (000) and find safety. If you feel unsafe and your ex-partner discovers that you have recorded them, it could inflame the situation and place you in further danger.

If you have a recording or believe that you have been recorded, that you bring this to the attention of your lawyer so that 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 updated on July 7, 2020.

As with all areas of Family Law, each matter is unique to those involved and everyone’s circumstances will be different. If you have further questions about this subject, please contact our Family and Relationship Law team on 1300 366 441 or enquiries@rctlaw.com.au to arrange a free first consultation.

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