We are finding that parties are increasingly asking about their right to use audio and video recordings as evidence in family law proceedings and recordings in family law cases are becoming increasingly common.
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.
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, it is lawful to record a conversation without the knowledge of other parties provided the person making the recording is a party to the conversation. 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.
Different laws apply in different states in relation to this issue.
Recordings in Family Law Cases
Under section 138 of the Evidence Act 1995, the court has the discretion to exclude improperly or illegally obtained evidence. If the evidence was obtained in breach of the relevant state legislation it could be 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.
The case law
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 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 he 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.
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 criticised 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 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 our family law expert, Courtney Barton.
