Can I use recordings in family law cases?

 

In an era where just about everyone has a smart phone that can capture every aspect of our lives, it is way too easy to record and catalogue personal moments with loved ones with a swipe or touch of a button.


So what about using recordings as evidence in family law cases?  Sounds like a great idea, but is it?

 

Each Australian State has its own set of laws in relation to surveillance all of which generally state that it is an offence to record a private conversation or activity, without the consent of all of the other parties involved.  Some States allow the recording of a private conversation or activity provided that the person recording is a party to the conversation or activity.

 

 The Family Court has the discretion to allow recordings to be used as evidence if the recording is able to provide proof or evidence that is relevant and if the desirability of admitting the evidence outweighs the undesirability of doing so.

 


When faced with whether or not to allow a recording to be used as evidence the Court will consider a number of matters including the importance of the recording, the value of the evidence to be obtained from the recording, the nature and subject matter of the case, how the recording was obtained and the prejudicial nature of allowing the use of the recording.  The Court routinely allows the use of secretly obtained recordings in circumstances where they provide evidence involving children’s matters and in cases of domestic violence.  The Court holds the view that it may be difficult to prove that a father has been violent towards his family at home when he is charming in public and may allow the use of recordings to confirm allegations of domestic violence.

 

The Court has, however, been reluctant to allow recordings of children answering questions posed to them by a parent on the basis that the parent was encouraging the child to answer in a particular way.  This could be seen as trying to involve the child in a dispute between the parents and therefore potentially expose the child to family violence.

 

There are no clear cut conclusions as to when or if the Family Court will allow the use of secret recordings however it does appear that if the recordings provide evidence where the safety of children or others may be at risk, then the Court may be inclined to accept such recordings into evidence.

 

For advice on recordings in family law cases, please contact us at Bambrick Legal for an initial appointment with one of our experienced family law practitioners today:


 

  • Call us on 08 8362 5269
  • Email [email protected]
  • Fill in our enquiry form here 
  • Visit our office at Suite 12, 15 Fullarton Road, Kent Town SA 5067