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. The Chief Justice of the Family Court of Australia recently described such usage as ‘quite common’, ‘widespread’ and said that ‘in the vast majority of cases it is admitted’.

Given the changing nature of technology, it is increasingly likely that family law practitioners will at some point in time be faced with a client who has such recordings and seeks to have the evidence put before the court. As with any evidence in family law proceedings, the client’s perception of the value of the secretly recorded evidence can be vastly different to that of the practitioner and the court. Caution needs to be taken before such evidence is obtained and used.

State legislation

Each of the States have their own legislation in relation to recordings. In some States it is illegal to record a conversation even if the person recording the conversation is a party to that conversation. For example, 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).

Other relevant legislation includes the Surveillance Devices Act 2007 (NSW) and the Invasion of Privacy Act (QLD) 1971.

Commonwealth legislation

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 technically be excluded. Realistically, if there is a breach, the court needs to weigh up whether the evidence should be admitted and will consider:

•  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.’

Section 69ZT of the Family Law Act 1975 provides that the rules of evidence do not apply to child related proceedings unless the court decides otherwise. As is evidenced in cases such as Janssen & Janssen [2016] FamCA 345 (1 February 2016), the court is prepared to positively exercise their discretion on this issue when the need arises.

Case law

There are a number of cases where a judicial officer has admitted the evidence however they have subsequently noted their criticisms of the recording party’s actions. Similar to evidence sourced from social media, clients will be inclined to think they have ‘struck gold’ with a piece of evidence, however the reality is that the evidence may prove to be more damaging to them than it is to the other party.

In the case of Badger & Badger & Ors [2013] FMCAfam 124 (14 February 2013), a telephone call was recorded by a litigation guardian (who was also a police officer). The recording was not admitted into evidence.

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 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 naïve and at worst a form of child abuse. In this sense they are equally culpable.’

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

In Huffman & Gorman (NO.2) [2014] FamCA 1077, the father recorded conversations between himself and the mother, without the mother’s knowledge or consent. The father and the independent children’s lawyer sought the admission of the material. The court found that whilst the evidence was unlawfully obtained and untested at that point in time, the evidence was admitted under s 138 of the Evidence Act.

Procedure for putting recorded evidence before the court

The most appropriate method for having recorded evidence put before the court will depend on the type of evidence, the type of hearing and the attitude of the particular judicial officer overseeing the case.

As a preliminary step, recordings should be transcribed and the transcriptions attached as annexures to the affidavit. The applicant can also depose to the fact the recordings are available for production as required.

The obligations to provide disclosure also apply, therefore it is necessary to ensure that any recordings have been disclosed 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.

If counsel are appearing on behalf of your client, they will often be able to give specific advice about the preferences of a particular judicial officer. It is best to have a copy of the recordings at court so they can be played if the court requires.

In conclusion, audio and video recorded evidence may be useful, however there is potential for the evidence to backfire. If a client presents recorded evidence to you, ensure that they understand the risks as well as the benefits of using the evidence. If they ask your advice before recording such evidence, ensure they understand their obligations under State legislation and the ramifications for breaches, as well as the obligation to disclose the material, regardless of the benefit or disadvantages that using such evidence may have for their case.