Nowadays with access to technology such as smart phones it is becoming increasingly common for parties involved in Family Court proceedings to do things such as record their ex-partners and/or their children and attempt to use the recording as evidence in court.
Whether it is legal to record a person without their knowledge or consent differs from state to state. In South Australia the Listening and Surveillance Devices Act 1972 says it is illegal to record another person on a listening or surveillance device without their consent and knowledge. There are however exceptions which do allow for a person to be recorded without their consent and knowledge if it’s in the public interest or in the interest of protecting someone’s lawful rights.
Although it is generally illegal in South Australia, it doesn’t mean that it doesn’t happen and it also doesn’t mean that these types of recordings cannot be used as evidence in Family Court proceedings.
It is becoming increasingly common for clients to say that they have made a recording and ask if they can use that recording as evidence in their family law matter.
"Past cases show that although obtaining such evidence may be deemed illegal, the court has in some cases allowed the evidence in. "
When determining whether evidence can be used in the Family Court the judge will look at the Evidence Act (Cth). Under the Evidence Act all evidence is admissible if it is relevant in a proceeding. Basically, it is relevant if the evidence can prove or disprove a matter of dispute in the proceedings. There are then many other rules regarding the admission of evidence under the Act which go beyond the scope of this blog.
Past cases show that although obtaining such evidence may be deemed illegal, the court has in some cases allowed the evidence in. The courts have however demonstrated a discouraging attitude towards parties recording their ex-partner, and especially their children. In fact in some cases even though the evidence has been accepted, it has turned out to be detrimental to the party who recorded it and not the other party.
When assessing whether to admit a recording presented to the court, the court will look at factors such as the details of the recording, the circumstances of the recording and who is the subject of the recording. It will also look at the importance of the evidence and the extent to which it assists with proving a point of issue.
The courts are understandably sceptical of accepting such evidence given that such recordings may be obtained under deceitful circumstances. For example, the party obtaining the recording of their ex-partner may act out of character to deliberately make themselves look like a victim and the other party to look bad. The court therefore gives careful consideration to each piece of evidence submitted before determining whether it will be admissible.
In summary the answer to the question whether your recordings can be used in the Family Court cannot be simply be answered yes or no. There are many factors which are taken into consideration before such evidence will be deemed admissible by the court. What can be said is that recording another person without their consent and knowledge is generally illegal in South Australia and that the court does not look favourably upon parties in family law disputes engaging in such behaviour.
We recommend that if you are involved in a family law dispute you should contact one of our specialists in this area of law to obtain legal advice about what evidence can and cannot be used in your court proceedings.
- In relation to “secretly recording”, you may also find our article “Can I secretly record conversations with my employer?” interesting.