To understand how recordings are treated in family law, we first need to look at how Surveillance Devices Act 2007 deals with recordings.
Recordings
Section 7 of the Surveillance Devices Act states that:
(1) A person must not knowingly install, use or cause to be used or maintain a listening device—
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Subsection 3 clarifies that that prohibition in 1(b) does not apply if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation—
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
Communication or publication
Section 11 states that “A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.’ [emphasis added]
Exemptions apply to this prohibition, including where it is communicated to a party to the recording or with consent of the principal party to the recording.
There is also an exemption under Section 11(2)(b) if that communication or publication is “no more than is reasonably necessary in connection with an imminent threat of serious violence to persons or of substantial damage to property.”[1]
Private Conversation
In Masri & Masri[2] the Court made clear that a conversation cannot be said to be “private” if “the parties to it ought reasonably to expect that it might be overheard by someone else” as may be the case in a public place.
Interpretation by Family Court of Australia*
Typically, the court looks at the Section 7(3) and 11(2)(b) exceptions in the context of parenting cases. The reason for this is that in family law, clients are more likely to take recordings to be used as evidence of family violence or exposure to other risks of harm to children. Family violence can still be relevant to property and financial cases where a party is pleading a Kennon argument. CROSS REF ARTICLE ON KENNON. Recordings may be used for other purposes, for example the Court has been asked to determine questions of admissibility of covert recordings to assist in resolving the question of whether a de facto relationship existed (see for example Jasper & Corrigan (No 2)[3]).
In Gin & Hing[4] a Single Judge found that the exemption in 11(2)(b) may apply in parenting cases where its application is necessary to advance the best interests of the child/children. This case has not yet been cited with authority by the Full Court of Australia nor the Federal Circuit and Family Court of Australia which was established in September 2021.
In Shelbourne and Shelbourne,[5] a Father was permitted to adduce video evidence taken of the Mother engaging in acts of family violence in circumstances where the Mother had alleged that the Father was the perpetrator of domestic violence. In allowing this material, the Court found that the Father had taken the videos to “protect [his] lawful interests” and these recordings would assist him in defending those allegations.
*Section 11 of the Surveillance Devices Act had not been considered by the newly established Federal Circuit and Family Court of Australia at the time of writing.
Providing the recording to your legal adviser
Your lawyer should be provided with all material relevant to your case and required to advise you. This is particularly so if there are factual controversies between you and the other party. Your lawyer must observe or hear the recording to advise you as to the applicability of any exemptions under the Surveillance Devices Act and whether the material is admissible in your family law matter. Furthermore, communication between you and your lawyer for the purpose of obtaining advice are covered by legal professional privilege, either common law privilege or statutory privilege.
Admissibility
In cases where the exceptions do not apply, the recording may nevertheless be admissible. This hinges on whether Section 138(1) of the Evidence Act applies. That states that “evidence obtained in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of doing so.” The Court will look at the following factors in answering that question:
- Probative value;
- The importance of that evidence to the proceeding;
- Difficulty obtaining the evidence without contravening the Surveillance Devices Act or another Australian law.
The majority of cases where parties attempt to use recordings involve family violence. The majority of family violence occurs in private and is unseen by third parties. It follows that in many cases, evidence of family violence through alternative channels may not be obtainable. If other ways to lead evidence of what occurred during the recordings exist, this may render the recording inadmissible.[6]
In Callahan & Callahan[7] the Father attempted to adduce evidence of a call between the Mother and the child of the marriage, Z where Z had recorded that conversation. The Father alleged that the Mother attempted to pass messages to the Father through the child Z and annexed a transcript of that call to his Affidavit evidence. The Court found that the Mother had no knowledge that the call had been recorded and therefore cannot have consented. The recording was therefore obtained illegally and in breach of Section 11(1) of the Surveillance Devices Act. The Court exercised its discretion to exclude that evidence under section 138(1) of the Evidence Act and held “I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained by a child recording a telephone conversation with his mother and passing it on to his father. It is not desirable to encourage or even condone a child taking a partisan attitude to proceedings between his parents.’[8]
Section 135 of the Evidence Act must also kept in mind. That Section states that:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
A recording which a party seeks to adduce to demonstrate behaviour of the other party will often, by its very nature, be prejudicial to a party’s case. The Court has made clear in Shelbourne that the material will not be unfairly prejudicial simply because it damages their case.
The Surveillance Devices Act makes it an offence to record someone without their consent by any electronic means, including video and voice recording, unless very specific circumstances apply. The Evidence Act will only allow the admission of recordings in very limited circumstances. The Family Law Courts have been asked to apply these exceptions in family law cases. Whether the exceptions apply and whether the evidence is admissible depends on the circumstances of the case.
[1] Surveillances Devices Act, 2007 (Cth) Section 11(2)(b)(i).
[2] [2017] FamCA 539.
[3] [2017] FCCA 1467.
[4] [2019] Fam CA 779
[5] [2017] FamCA 761.
[6] Masri supra at [43].
[7] [2014] FCCA 2930.
[8] Judge Scarlett at [68]
Contact our Family Law Team for any queries regarding the use of recordings in a Family Law context.
If you have any question or concerns please contact Stuart Robertson of our Family Law Team on 02 6188 3600