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Don’t press play: Recordings as evidence in Family Law cases

Smart technology has become a fundamental part of everyday life. We can now record and catalogue our lives in a way we never have before and capture personal moments with loved ones at the touch of a button.

It doesn’t come as a surprise then, that people are increasingly asking about their rights to use audio and visual recordings as evidence in family law litigation to show their side of the story.

While the idea of making recordings to use as evidence in your family law dispute may seem like a good way to persuade the Family Court, it is important to be aware of the risks and pitfalls of relying on audio or visual recording evidence.

What is the law regarding surveillance of a private conversation?

Under Victoria’s surveillance laws, it is an offence to record a private conversation or private activity that you are not a party to, without the consent of each party to the conversation or activity^[1]

The Court has the discretion to admit recordings as evidence if:*

The evidence is probative and relevant;^[2] and
The desirability of admitting the evidence outweighs the undesirability doing so.^[3]

In weighing this balance, the court will consider a number of factors including the importance and probative value of the evidence, the nature and subject-matter of the case, the impropriety or contravention involved in how the recording was obtained, and the prejudicial nature of admitting the evidence.

The Family Court will also consider the provisions of the Family Law Act 1975,^[4] such as protecting the interests of children to a proceeding.^[5]

What does the case law say?

In the recent case of Janssen & Janssen^[6] involving children’s matters, the Family Court held that secretly obtained recordings made by the mother of the father without his consent were admissible.

The decision of His Honour Justice McClelland to admit the evidence was one based on the specific facts of the case and the existence of family violence perpetrated by the father. In reaching this decision, he highlighted that “it is notoriously difficulty to obtain evidence of family violence which takes place behind closed doors”, particularly where there are “allegations that the father has maintained a charming public face but has engaged in conduct within the family home that is alleged to have constituted family violence in terms of the provisions of... the Family Law Act.”^[7]

How does the court view recordings of children?

However, there are circumstances where the courts will look poorly on the use of recordings as evidence.

The Honourable Chief Justice Bryant of the Family Court told Radio National’s Damien Carrick on the Law Reports program that recordings of children are problematic because “you don’t want someone asking leading questions, you don’t want someone encouraging them to give a particular answer”.

This may be damaging to the child because it is involving them directly in a parenting dispute.

It is therefore important to be aware that recording a child for use as evidence in a parenting matter is not only highly inappropriate, but may be viewed as exposing the child to family violence.

What are the risks?

There is also a risk that such recordings may backfire on the person making them. Particularly so where the recordings are not objective and unfairly portray the person who does not know the recording is being made in a bad light.

In the case of Huffman & Gorman,^[8] secret recordings made by a father of the mother were criticised by the court for this reason, but admitted as evidence on the basis that there were serious allegations as to the safety of the children in the care of the mother.

It is notable that as of 3 June 2016 this case is to be heard on appeal by the Full Court of the Family Court of Australia.^[9]

What conclusion can we draw?

Perhaps what we can draw from the case law is 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 other circumstances, it is likely such recordings will reflect poorly on the person making them and may not be admitted. This is most apparent where the recordings are of children subject to a family law dispute.

*This blog has been edited since it was published on 8 July 2016 to clarify that it is not an offence for a person to record a private conversation or private activity that they are a party to.