Audio Recordings and Family Law – can these be used in Court?

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I have had many situations where clients have presented me with audio or video recordings that they wish to use in Court. What does the Court say about this?

The client usually will present the recording (with the best of intentions) and on the basis that the recording proves of disproves allegations made by the other side in a family law dispute OR that the recording contains admissions being made by the other party relevant to the family law dispute OR the recordings contained conversations between a parent and child (or children) that highlight poor behaviour on the part of the parent talking to the child (or children). When such recordings are presented, there are four key considerations at the forefront of an experienced and knowledgeable family lawyer’s mind:

  • Has this recording been made illegally or improperly, and is the client therefore exposed to being charged with an offence?
  • Even if the recording was recorded illegally or improperly, is the recording still relevant to the family law dispute, and of such value in proving or disproving allegations made in the family law dispute, that the Court hearing the family law dispute would be willing to allow the recording into evidence despite it being illegally (or improperly) obtained?
  • If the evidence is of such importance that it should be admitted into evidence in a family law dispute despite potentially being illegally or improperly obtained, what protections can be put in place to minimise any exposure of the client to being charged with, or convicted of, an offence related to making the recording?
  • If the client is the person who has been recorded, should the recording be excluded from evidence in the family law dispute for any reason, including because:
    • 1. The recording was illegally / improperly obtained;
    • 2. The recording does not assist to clarify any issues in dispute in the case;
    • 3. The environment was manipulated by the recording party so that the recorded party is shown in a negative light; and/or
    • 4. The recording being allowed into evidence would otherwise (including because it is only revealed to exist late in the family law dispute) create an unfair disadvantage (or unfair prejudice against) the person being recorded.

Family Law in Australia is a federal jurisdiction, which means that the same law applies in every State and Territory in Australia. Likewise, the Evidence Act 2005 (where the law is set out regarding what the Family Law Courts can do with recordings as evidence in family law court cases) is also a federal jurisdiction.

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However, it is State /Territory Law that sets out whether it is legal or illegal in each State or Territory to record conversations – whether:

  • 1. the recording party is a party to the conversation or not; and/or
  • 2. whether or not consent was needed to legally record a conversation; and/or
  • 3. whether the recording party has any legal excuse to record a private conversation without the consent of the other party to the conversation; and/or
  • 4. what penalties apply if a person is found to have breached State or Territory Law, and illegally recorded a conversation.

The relevant laws in each State and Territory of Australia are as follows:

  • 1. New South Wales – Surveillance Devices Act 2007;
  • 2. Australian Capital Territory – Listening Devices Act 1992;
  • 3. Tasmania – Listening Devices Act 1991;
  • 4. Western Australia – Surveillance Devices Act 1998;
  • 5. South Australia – Surveillance Devices Act 2016;
  • 6. Northern Territory – Surveillance Devices Act 1997;
  • 7. Queensland – Invasion of Privacy Act 1971; and
  • 8. Victoria – Surveillance Devices Act 1999.

At Argent Law, our experienced family lawyers are knowledgeable and confident about how audio recordings are to be admitted into evidence, or excluded from evidence, in family law proceedings. We also have quality relationships with Barristers experienced in representing our clients on this issue in Magistrates Court proceedings (and Federal Court proceedings) regarding offences against State / Territory legislation, as well as in the Family Law Courts. So, if you are going through a family law matter, and you believe you should start making recordings, or you already have done so – you need to seek legal advice. Likewise, if you have reason to believe that somebody else has recorded you without your consent for the purpose of family law proceedings, you need advice you on this important issue.

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