A question frequently asked by clients is whether they can rely on recordings they have taken on their phone of their ex-partner or children and whether such recordings can be put into evidence and considered by a judge in their final hearing.
What does the legislation say?
You can legally record a conversation in Queensland provided you are a party to the conversation. Different states have different laws governing this.
However, the Evidence Act (Cth) provides a basis for the consideration for the admissibility of such evidence in Australian family law proceedings.
The law states that evidence which is improperly or illegally obtained is not admitted unless the desirability of admitting that evidence in the case outweighs the undesirability of admitting evidence that has been wrongfully obtained.
The Court may refuse to admit evidence if its persuasive value is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party, or misleading or result in a waste of time.
What is the Court’s view?
The Family Court (now the Federal Circuit Court and Family Court of Australia) has historically taken a conservative view and has usually denied such recordings into evidence. However, the Court has considered the issue for example in the below cases:
In Huffman v Gorman the Court considered whether to allow a recording into evidence despite it being illegally obtained. The dispute was in relation to parenting. The father alleged that the mother was violent throughout their relationship. The mother denied his allegations on the basis that the father never reported his concerns to the police. During the proceedings, the father produced a number of recordings of the mother during the relationship.
In coming to his conclusion, the Judge noted the “notorious difficulty to obtain evidence of family violence, which often takes place behind closed doors” and allowed the evidence on the basis that the best interest of the children is paramount. This outweighed the issue of the undesirability of admitting evidence which was unlawfully obtained.
In Coulter v Coulter the mother secretly recorded the father’s attendance during the change-over at her home and secretly obtained two audio recordings between him and the children.
The Court found that it was not improper for the mother to video recorded the changeovers as she had a legitimate concern for her safety. The Court was satisfied in her evidence that at the time, she was having ongoing difficulties with the father.
However, the Court did find that the private recordings of the father’s conversations with the children was a breach of privacy and the audio conversations with the children were excluded form evidence.
In Nagel v Clay , the mother exhibited over 8 hours of digital and audio recordings of the father’s behaviour at changeovers and at separation to her evidence.
The father was unaware that he was recorded. 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 hours recording only represented a snapshot of over 400 changeovers which took place and therefore was not accurate.
The Court found that the evidence did not hold enough persuasive value to outweigh the danger that the evidence may unfairly prejudice the father and mislead the court and therefore was excluded from evidence.
There is no “general rule” to decide when the Family Court will admit such recordings into evidence.
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