25 Aug Can Recordings Be Used in Family Law Court?

Can you use recordings in a family law dispute?

• The use of smart phones has made it easier for parties in family law proceedings to secretly obtain audio and video recordings as evidence to be used in their family law cases
• Each of the States has their own legislation in relation to recordings. For example, in Victoria, if the party has obtained a recording of a conversation and all of the parties involved have not consented to the recording, it may be a breach of s 6 of the Surveillance Devices Act (1999) (Vic).

What the judges say

The court needs to weigh up whether the evidence should be admitted or not considering:

• the probative value of the evidence;
• the importance of the evidence;
• the nature of the evidence; and
• the gravity of the impropriety of the contravention and whether it was deliberate or reckless.

The courts also have general discretion to exclude evidence pursuant to s 135 of the Evidence Act 1995, if: ‘the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or… result in an undue waste of time.’

Example of cases of separated parents using recordings in court

In the case of Simmons & Simmons [2013] FCCA 304(24 May 2013), a recording device was planted on the children by their mother before they went to spend time with the father. The evidence was admitted, however, both parents were heavily criticised.

The Judge said: ‘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 naïve and at worst a form of child abuse. In this sense, they are equally culpable.’

In the case of Janssen & Janssen [2016] FamCA 345 (1 February 2016), the wife was successful in having a recording proving family violence admitted in family law proceedings.

Disclosure before using recordings

As with any other evidence in family law matters the parties have obligations to disclose to the other party before ‘surprising’ them at the hearing. The duty of disclosure is not limited to evidence which is beneficial to the recording party. If their recording is detrimental to the recording party’s case, the obligation to disclose remains the same.

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