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Can private recordings be used as evidence in family law proceedings?

By September 7, 2021Family Law

The age of smart phones has enabled people to record all facets of their lives with the simple click of a button.  In the context of family law proceedings, it is increasingly common for people to make audio and visual recordings of their former partner (e.g. during a conversation or changeover of children) and then seek to rely on those recordings in their family law matter.  But is it lawful to record private conversations or activities in Australia?  Are they admissible as evidence in court proceedings?  Read on to found out more.

Is it lawful to record private conversations in Queensland?

Each state and territory in Australia have their own legislation regarding audio and visual recordings.

If you are taking part in a private conversation in Queensland, you are permitted to record the conversation without the consent of the other parties involved.  It is illegal to record a private conversation that you are not involved in.

Is it lawful to record private conversations in NSW?

If you are taking part in a private conversation in NSW, it is illegal to record the conversation without the consent of all the parties involved unless it is reasonably necessary to do so for the protection of your lawful interests.  It is illegal to record a private conversation that you are not involved in.

What constitutes the protection of lawful interests will generally depend on the particular facts and circumstances of each case.  A theme that has emerged in family law cases is that recordings which provide evidence of domestic violence which takes place behind closed doors without any witnesses, can be considered reasonably necessary for the protection of a party’s lawful interest.

Can a recording made illegally still be admitted as evidence?

Even if a recording was made illegally, the Courts can still allow it to be used as evidence in court proceedings.  When deciding whether to admit a recording as evidence, the Court will consider a number of factors including:

  • The probative value of the evidence
  • The importance of the evidence
  • The difficulty of obtaining the evidence legally

Again, recordings which provide evidence of domestic violence that is otherwise “hidden”, are likely to be found to have probative value in family law parenting proceedings.

What are the risks in recording a private conversation?

In Queensland, it is an offense to communicate or publish a private recording (even if the recording was made legally) without the consent of the other people involved.  This includes posting a recording on social media.

The Courts will often frown upon a party who privately records their former partner without good reason and will view it as a poor reflection of that person’s character.  This may not bode well for that party when the Court makes its final determination in the proceedings.

The Courts tend to be particularly critical of parties who involve their children in recordings, for example, Mum gets the child to record Dad when the child is staying at Dad’s house.

We always advise our clients to err on the side of caution and to put down the phone, unless there is a very good reason to be recording.  If you do have a private recording of your former spouse, we strongly recommend you obtain advice from your solicitor before doing anything further with it.

For more information, please contact a member of our family law team at Fox and Thomas.