Secret Recordings in Family Law

Family law litigation can be very bitter and highly contested where the main witnesses to a dispute are usually the parties themselves. This can bring about a whole range of issues where various claims are made, often without any corroborating evidence.

It is not uncommon for people involved in the family law system to use electronic devices to record interactions with the other party in their matter. These recordings can create all sorts of issues in the context of family law matters.

Is it even legal to record someone?

In Queensland, it is an offence to use a listening device to record a private conversation. However, an offence is not committed if the person using the listening device is a party to the conversation.

Can a recording be used as evidence?

If a recording has been obtained legally, there still may be restrictions on whether a recording can be used as evidence in Court.

The general rule is that a Court will not accept anything as evidence if the evidence has been improperly or illegally obtained. The Court also has a discretion not to admit something into evidence if there is a risk that the evidence might be prejudicial to a party, misleading, confusing, or just a waste of time.

A Court may accept a recording into evidence if there is sufficient probative value in doing so. Whether or not a recording has sufficient probative value will depend on the facts of the case.

In Huffman & Gorman (No 2) [2014] FamCA 1077, the Court allowed the father to rely on recordings of the mother because the father alleged the recordings were evidence that the mother’s violent conduct was emotionally and psychologically harmful to the children.

Secret audio recordings were admitted to evidence in Janssen & Janssen [2016] FamCA 345 where the mother in that matter relied on recordings to establish evidence of allegations of serious family violence against the father.

Considerations

It is important to consider the nature of the recording and whether it has been lawfully obtained in the first place.

Further, the recording will likely need to be disclosed to the other party as part of the ongoing duty of disclosure. The disclosure of the recording is likely required regardless of whether the recording is being relied upon, was lawfully obtained or is even helpful in the proceeding.

It could be that a party who has a recording may do more harm than good to their case with a recording because the other party may seek to rely on it as evidence of the other party’s credibility.

It is always important to consider very carefully whether it is appropriate to use recordings in the context of family law matters.

If you are unsure about your legal obligations in relation to recordings and evidence, please contact our family law team to discuss your circumstances.