We are finding that parties are increasingly asking about their right to record their ex-partner and to use those audio or video recordings as evidence in family law proceedings. Read on to answer the important question ‘Can I record a private conversation without permission?’ and ‘is it a good idea?’
While making video/audio recordings to use as evidence to prove your side of the story may seem like a good idea, it is important to be aware of the risks when relying on audio and video evidence in your family law matter.
Before deciding to record it is important to consider the legality of the recording, whether the recording may be admitted as evidence, how the recording may be perceived by the court and what of the obligation to disclose the recording if it doesn’t achieve what the person behind the recording device was hoping it would.
What does the law say about recording private conversations?
In Queensland, under section 43(2) of the Invasion of Privacy Act 1971 (Qld), it is lawful to record a ‘private conversation’, that is, a conversation in person, via telephone or other electronic means (e.g. zoom, teams, messenger) without the knowledge or consent of other parties provided the person making the recording is a party to the conversation. It is illegal for a person not involved in a conversation to record that conversation: section 43(1). Therefore, Amy can record a conversation between Amy, Paul and Peter but Amy cannot record a private conversation between Paul and Peter when Amy is not a party to the private conversation. Similarly, if Amy’s child Joey was having a conversation with his father, it would be illegal for Amy to leave a mobile phone nearby recording that conversation.
However, there are restrictions on what you can do with the recording. You cannot distribute it unless there is a lawful exception. The use of a recording for the purposes of legal proceedings is an exception, but you should obtain legal advice in relation to your individual circumstances before you do so.
Different laws apply in different states in relation to this issue. For example, in New South Wales and Victoria, it is an offence to record a private conversation without the consent of each party to the conversation.
Conversations over the Phone
Under sections 6 and 7 of the Telecommunications (Interception and Access) Act 1979, telephone communications are legal if the party recording the conversation is part of the call and is recording from a separate device. If the party recording the conversation is not part of the conversation or if they are recording from a separate device, the recording is illegal. Therefore, Amy can record a phone conversation with Paul if she uses a separate recording device, but she cannot use an app to record the conversation with Paul, nor can she record a phone conversation between Paul and Joey if Amy is not part of the call, whether from the same or a different device.
Recordings in Family Law Cases
Under section 138 of the Evidence Act 1995, the court has the discretion to admit into evidence or to exclude improperly or illegally obtained evidence. If the recording was obtained in breach of the relevant state legislation, for example if a recording was made in Queensland but the person making the recording was not a party to the conversation, it is up to the Court as to whether the evidence is admitted or excluded.
In determining whether to admit such evidence in family court proceedings, the court will weigh up and consider:
- the probative value of the evidence;
- the importance of the evidence;
- the nature of the evidence;
- the gravity of the impropriety of the contravention and whether it was deliberate or reckless
The court also has a general discretion to exclude evidence pursuant to section 135 of the Evidence Act if the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing.
In summary, the Court will admit the evidence illegally obtained if the desirability of making it admissible will outweigh the undesirability of admitting evidence that is known to have been illegally obtained.
The case law in relation to recordings
What does the case law say about recordings in family law cases?
In Badger & Badger & Ors [2013] FMCAfam 124 a telephone call was recorded by a litigation guardian who was also a police officer. The recording was not admitted into evidence.
In Janssen & Janssen [2016] FamCA 345 the Mother was successful in having a recording evidencing family violence admitted into evidence. In this case, the mother made serious allegations of domestic violence and sexual abuse against the Father. The Mother recorded a number of conversations she had with the Father which indicated he had made physical threats to the Mother and the children. The Court admitted the recordings into evidence as they were relevant to the allegations of domestic violence stating:
“the Father may have had a public face very different from his private face, a possibility accepted by Dr Q, who agreed that the Father may be charming and delightful in company, and intimidating and frightening in the home, as alleged by the Mother.”
In making this decision the court highlighted how notoriously difficult it is to obtain evidence of family violence which takes place behind closed doors.
In Simmons & Simmons [2013] FCCA 304 a recording device was planted on the children by their mother before they went to spend time with the Father at a contact centre. The evidence was admitted however both parents were heavily criticised by the Judge who 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 naiive and at worst a form of child abuse. in this sense they are equally culpable.”
In Huffman & Gorman (No 2) [2014] FamCA 1077, the Court considered whether to allow the Father’s illegally obtained recordings to be admitted into evidence. The father alleged that the mother was violent throughout their relationship. The mother denied his allegations and asserted that the father never reported any concerns to the police. During the proceedings, the father produced a number of recordings of the mother during the relationship which corroborated that there was family violence by her. The Judge noted the “notorious difficulty to obtain evidence of family violence, which often takes place behind the closed doors” and allowed the evidence on the basis that the best interests of the children are paramount and outweighed the undesirability of admitting evidence which was unlawfully obtained.
In Garner & Garner [2016] FamCA 630, the Court admitted into evidence recordings made by the Wife of the Husband, without his knowledge, of him swearing at her, calling her names and threatening suicide. Whilst the recordings were without the Husband’s consent, it was given to the Court with the consent of both parties. The Court noted that “there is no doubt that the father’s language as recorded in the transcripts would satisfy the definition of family violence.” It was relevant that the content of the recordings satisfied the definition of family violence under s4AB of the Family Law Act 1975. His Honour considered that the recordings were probative to the issues in dispute, family violence being an issue at the forefront of the issues to be determined, and the best interests of the children warranted that the recordings be admitted into evidence.
In Jasper & Corrigan (No. 2) (2017) FCCA 1467, involved an application by the Wife seeking a declaration of a de facto relationship and property settlement Orders. The Wife made a recording of the Husband without his knowledge about the nature of their relationship. The recording was illegal in New South Wales given the Husband’s consent had not been obtained. The Court held in the circumstances that the Wife had no other options available to her, in terms of evidence, and therefore the use of the recordings as evidence was ‘reasonably necessary’ and so the Court exercised discretion to allow the evidence to be led. The Judge noted however noted that just because the Court ruled that the recording was admissible did not mean the Court had ruled on the weight to be given to the evidence and that evidence might be admissible, but it might not receive much weight.
In Coulter & Counter (No. 2) [2019] FCCA 1290 the Mother was successful in having secretly taken video of changeovers occurring at her home admitted into evidence but the audio of the father’s private conversations with the children was held to be in admissible. In making the decision to admit the recordings of the changeovers, the court determined that it was not improper for the mother to record the changeovers in circumstances where the Mother had been having difficulties with the Father due to him displaying abusive, coercive and controlling behaviours and therefore she had a legitimate interest in her personal safety and in preventing the children from being exposed to conflict. The latter recordings of the children talking to the Father were excluded as it was a significant breach of trust for the children who were entitled to privacy in their conversations with their father irrespective of any motives of the father to involve them in any adult issues/conflict.
In Nagel & Clay (2020) FamCA 326, the mother exhibited over 8 hours of digital and audio recordings of the father’s behaviour at changeovers and at separation to her Trial Affidavit. The father was unaware that he was being recorded by the Father. The mother asserted that the recordings supported her allegations that the father was “verbally and physically violent towards her”. The father asserted that the 8 hour recording only represented a snapshot of over 400 changeovers which took place and therefore was not accurate. The Court exercised discretion to exclude the recordings, finding that the recordings were largely irrelevant, had limited probative value and did not hold enough probative value to outweigh the danger that the evidence may unfairly prejudice the father and mislead the court. Given the Mother had already provided the Family Report Writer with a copy of her trial affidavit attaching the recordings, orders were made that the Report Writer have no regard to the recordings in preparation and finalisation of her report.
Is the recording a ‘set up’?
In Guzniczak & Rogala [2017] FamCA 758, prior to separation the Husband made recordings of the wife without her knowledge or consent, in anticipation of family law proceedings. In the Court’s view, the Husband “goaded” the wife and set up ‘traps’ where he would present himself as a victim and the wife as an aggressor. His Honour commented that 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.” The recording was admitted into evidence but not interpreted in a way favourable to the Husband.
This case makes clear that even where a recording is admitted into evidence it does not mean it will be given weight by the Court. The Court may still disregard it, give it little weight or interpret it in a way which had not been intended where one party has been ‘set up’ by the other in order to create an incorrect impression of what had occurred. Ultimately, the credibility of a witness will impact on a Judge’s final decision.
Should I or should I not record?
The courts may in circumstances look poorly on a party seeking to rely upon recordings in family law cases.
A party recording a child for use as evidence in a parenting matter may be criticized for breaching the child’s privacy or the recording may be viewed as exposing the child to family violence, such as in the case of Simmons & Simmons where the Mother was heavily criticized for planting a recording device on the children during a supervised contact visit.
From the case law, we can draw a conclusion that the Family Court will more readily use their discretion to admit covertly obtained recordings as evidence where family violence is alleged and where the safety of children or other persons involved in family law proceedings is at risk.
In all other circumstances, it is likely that such recordings will reflect poorly on the person making them and may not be admitted.
If you have any questions in relation to audio and video recordings and their probative value in family law proceedings, contact us to book a reduced rate consultation with one of our experienced Brisbane Family Lawyers.
