• Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Phone: 3465 9332

Logo
  • Home
  • Our Team
    • Courtney Barton – Legal Practice Director & Founder
    • George Finn – Director
    • Chris Colwill – Senior Associate
    • Ellie Prior – Associate
    • Hannah Radunz – Solicitor
    • Tenayah Miano – Paralegal
    • Alice Chapman – Paralegal
    • Rachel Elaurant – Legal Assistant
  • Our Services
    • Divorce Property Settlement Lawyers
    • Family Law Spousal Maintenance
    • Superannuation Splitting & Advice Lawyers
    • Child Custody Lawyers Brisbane
    • Child Support Lawyers
    • Child Relocation Family Lawyers
    • Child Abduction Family Lawyers
    • Fixed Fee Consent Orders Brisbane
    • Binding Financial Agreements
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Family Court Process
    • Family Mediation Services Brisbane
  • Fixed Fees
  • Common questions
    • Spousal & Separation
      • Beware the criminal consequences of false allegations of sexual abuse
      • Initial Contributions Count – 8 years + 1 child = 78%/82% to Husband
      • Validity of Overseas Orders – Parenting, Marriage and Divorce Orders
      • Superannuation Splitting in Financial Agreements
      • Is my Binding Financial Agreement Binding?
      • Bodilly & Hand: Spousal Maintenance ordered 17 years after separation
      • Admissibility of admissions at mediation in court proceedings
      • Does your Financial Agreement Protect you from a maintenance claim?
      • The Alter Ego Principle – When a Spouse uses a trust to hide assets
      • Do I have to mediate before court? The exemptions Explained
      • Pet Custody – Who gets the dog in a divorce?
      • Top 10 Myths in family Law Finally Exposed
      • Honesty is the best policy – Why tell your divorce lawyer everything
      • My ex is selling assets. What can I do??
      • 6 secrets revealed to help you protect your assets and your family after separation. No. 1 and 2 will blow your mind.
      • Spousal Maintenance – Do I have to support my ex after divorce?
      • Who stays in the home after separation?
      • Can I go to court without doing mediation first?
      • Assessing initial contributions in a long relationship
      • What to do and what not to do before you separate
      • CGT rollover for marriage breakdowns – Ellison & Sandini Explained
      • Domestic Violence Order Applications – How to boost your chance of success
      • Going back to work after Divorce
      • Mediation
      • 10 tips to Protect your Assets
      • Am I in a De Facto Relationship?
      • Property Acquired after Separation – how is it treated?
      • Divorce – What you need to know
      • Petrie Family Law Expert speaks about ‘The Twelve year Itch’
    • Parent
      • Court Ordered Paternity Test – What, Why and How
      • NEWS ALERT – You do NOT need a s60I certificate to file your parenting application – Valack & Valack
      • What is sole parental responsibility?
      • How does a DVO affect parenting orders?
      • Do you want sole Custody? Here’s what NOT to do.
      • SHOCK: Drug use in Australia worse than ever. Drugs & family law explained
      • SHOCK: Drug use in Australia worse than ever. Drugs & family law explained
      • When is supervised time ordered? Is Narcissistic Abuse enough?
      • Interim Parenting Orders
      • What is substantial and significant time?
      • Am I a parent?
      • My ex is in contravention of a Parenting Order. What can I do?
      • My Parents lent me money. Is it treated as a gift or a loan?
      • Gay Couple Win Appeal on sperm donor ‘parent’
      • How to spend more time with your children
      • Parental Alienation in Family Court Disputes: Part 2
      • Im not a parent. Can I apply for a parenting order? Non-Parent Parenting orders explained.
      • Can Parenting Orders be changed?
      • Step-Parent Adoption Explained
    • Child
      • What age can a child decide where they live?
      • Finally revealed: Top 10 things people do wrong in child custody matters
      • Child Relocation Family Lawyers
      • I want sole custody of my child
      • Rights to return of your child if taken to a Non-Hague Convention country
      • How to deal with false allegations in family law
      • Unilateral relocation of children
      • Prevention is better than Cure – Interim Relocation of Children Cases
      • International Travel with Children After Separation
      • Airport Watch List Orders / Pace Alert Orders
      • Application to change parenting orders because of children’s changed views dismissed
      • When can you change your child’s surname?
      • Change in residence for children because of Mother’s inability to protect the children from harm
      • Courtney’s Cases: Interim Orders appealed as Judge avoids determining issues
      • Mother’s persistent accusation that the Father sexually abused their child results in orders for no time with the Mother
      • Relocation – Full Court confirms decision allowing ADF Mother a ‘blank cheque’ relocation to wherever posted in her employment
    • Property
      • Top 15 things people do wrong in a property dispute
      • Hiding assets in a divorce
      • Injunction to stop my ex selling assets
      • What is a Superannuation Payment Flag?
      • Difference between property and a financial resource in family law
      • Impact of overseas divorce on Australian property settlement
      • How Trusts are dealt with in a Property Settlement
      • Redundancy payment – how is it treated?
      • Future inheritances – when can they be taken into account?
      • Can the court order someone to leave a house? – Ouster Orders
      • Time Limits in Property Settlement
      • Beware: failure to disclose may derail your consent order
      • Duty of Disclosure
      • What is just and equitable?
      • Why you should formalise your property settlement
      • Is domestic violence relevant in a property settlement?
      • Varying property orders
      • Defaulting on Property Orders is Dangerous
      • Effect of Bankruptcy on property settlement
      • Courtney’s Cases: Centrelink fraud or a fraudulent representation to the Court?
      • Limitation periods against solicitors for defective Financial Agreements
      • Clayton & Bant – A multi-jurisdictional family law dispute
      • Dunworth & Faletti: Application for injunction to stop sale of property where jurisdiction not yet established
      • Court dismisses application for property settlement for same sex couple of 27 years
    • Child Support
      • I want to set aside a Binding Child Support Agreement
      • I want to challenge my child support assessment
    • Other Legal
      • Out With the Old, In With the New: Why Fixed Fees are better
      • NEWSFLASH – What are the New Family Law Rules?
      • Apprehended Bias – should Judges & lawyers have drinks pre-judgement?
      • Inquest of Jack & Jennifer Edwards – Lessons Learned
      • 6 things you MUST know before hiring a family lawyer
      • Admissibility of opinion evidence & expert evidence in family law matters
      • Admissibility of recordings in family law cases
      • COSTS ORDERS
      • WARNING PRACTITIONERS: New Family Law Rules from 1 March 2018
      • Review of the Family Law System
    • Covid-19
      • The Covid-19 Vaccination – Is mutual parental consent required?
      • I want to apply to the Family Court for inclusion in the Covid-19 List
  • Family Law Videos
  • Family Mediation
  • Contact Us
  • Success Stories
  • Narcissistic Abuse

Admissibility of recordings in family law cases

September 13, 2019 By Barton Family Law

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;recordings in family law cases
  • 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.

 

 

Filed Under: Commonly Asked Questions, Misc Legal

Barton Family Law

Primary Sidebar

Online Enquiry

.

    I would like to book a reduced rate initial consultation with you

    Footer

    Areas of Practice

    • Child Custody Lawyers Brisbane
    • Divorce Property Settlement Lawyers
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Superannuation Splitting & Advice Lawyers
    • Fixed Fee Consent Orders Brisbane
    • Mediation Representation
    • Child Relocation Family Lawyers
    • Child Abduction Family Lawyers
    • Child Support Lawyers
    • Family Law Spousal Maintenance
    • Family Court Process
    • Family Mediation Services Brisbane
    • Binding Financial Agreements

    What makes us different from other Law Firms?

    Our Brisbane Divorce & Family Lawyers:

    • Only do family law all day every day. That makes us really good at what we do;
    • Are dedicated to helping you work through your family law issues so you can have a fresh start;
    • Have your best interests at heart;
    • Have the knowledge and experience to solve your family law problems, no matter how complex;
    • Will help you to reduce the conflict with your former partner;
    • Will fight for you and your children;
    • Provide exceptional quality service to you, tailored to your individual case needs;
    • Will educate you about your options, the steps you need to take and we will develop a strategy to help you to achieve a fair outcome and the best practical outcome for you and your family;
    • Will provide you with practical, realistic, commercial and strategic advice to empower you to make smart decisions following separation that will save you time, money and stress;
    • Will deliver an outcome to you quickly and cost effectively, with fixed fees for certainty;
    • Will do everything within our legal power to get you the best outcome for you and your family;
    • Are with you, supporting you, every step of the way from negotiations, to mediation, to litigation and settlement.
    Individual liability limited by a scheme approved under professional standards legislation.

    Contact Us

    Petrie Office

    • Address: 4/996 Anzac Avenue, Petrie QLD 4501
    • Parking: Underground parking available at the back of the building via O’Loan Street
    • Phone: 3465 9332
    • Email: [email protected]
    • Website: Petrie Family Lawyers

    Chermside Office

    • Address: 822 Gympie Road, Chermside QLD 4032
    • Phone: 3465 9332
    • Email: [email protected]
    • Website: Chermside Family Lawyers

    Aspley Office

    • Address: Aspley Hypermarket, 59 Albany Creek Road, Aspley QLD 4034
    • Phone: 3465 9332
    • Email: [email protected]
    • Website: Aspley Family Lawyers

    Copyright © 2022 | Website hosted by Lift Legal Marketing