Handheld devices that allow all of us to record good quality video and audio have revolutionised many areas of life, including the law.
These days many people involved in Family Law matters attempt to have audio and video recordings included as evidence, supporting the claims they make against their ex-partner in an affidavit.
This post will look at the legal issues involved in recording conversations for the potential purpose of being used as evidence in family law proceedings.
If you have questions or concerns on this particular issue, contact family law experts Delaney & Delaney today.
What are the key legal issues around recording conversations?
Family Law and the Federal Circuit and Family Court of Australia is governed by the Family Law Act 1975 and associated rules and regulations and case law at a Commonwealth Level, including the Evidence Act 1925. It must also consider the relevant state-based legislation on a case-by-case basis.
Queensland’s Invasion of Privacy Act 1971 (‘the Act’) is the applicable legislation covering the recording and publishing of private conversations in Queensland. A private conversation is defined as being between two or more people that is intended to be private, and not heard by anyone else, whether the conversation is in person or over the telephone.
Section 43 of the Act provides that it is an offence to use a listening device (other than a hearing aid) to overhear, record, monitor or listen to a private conversation. Section 44 of the Act makes the communication or publishing of a recording of a private conversation an offence. Publishing includes playing, reproducing or copying the recording unless everyone involved in the conversation consent
There are, however, several exceptions to these provisions.
The first is where the person using the listening device is a party to the private conversation. This means, if you are part of the conversation with one or more people, it is legal to record without their knowledge. But you cannot record a private conversation held between two people if you were not a participant in the conversation.
If the private conversation has been unintentionally overheard heard by telephone it is not an offence.
Other exceptions for the recording, use of and publication of private conversations exist for government officials, police officers and in public interest matters.
The prohibition on the publication of a recording of a private conversation does not apply where the publication is made for and in the course of legal proceedings.
It is important to note that section 46 of the Act provides that where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43, evidence of that conversation may not be given by that person in any civil or criminal proceeding.
While there are exemptions to section 46, including consent and prior or other knowledge, it may not be worth the effort.
Recording video of someone on your mobile phone falls within section 227A of the Criminal Code 1899 (Qld), where it is an offence to record another person without that person’s consent where a reasonable adult would expect to be afforded privacy (such as in a private place, or where the person is engaging in a private act).
There is also Commonwealth legislation in existence regarding telephone calls, section 7 of the Telecommunications (Interception and Access) Act (Cth) 1979 prohibits the interception and recording of telephone calls.
As a rule, telephone calls may not be recorded whilst being transmitted unless the person recording the call informs the speakers that they are being recorded. A party can record a telephone conversation in which he or she is a participant without offending this section, as it is the interception of the call without the participants’ knowledge, rather than the recording that creates the offence.
Recording conversations for use in Family Law matters
Parties to Family Law proceedings will often think their case will be strengthened by having audio or video recordings of the other party which show them in an unfavourable light, such as arguing, making threats or engaging in acts of intimidation.
It is legal to make a recording in a public place, where you would expect other people to hear you, and to record conversations in which you are a participant.
In practice, this means that a parent can legally make an audio and visual recording (for example, on a mobile phone) of his or her direct interaction with the other parent at a contact changeover, without the other parent knowing and consenting.
However, the legislation also means that a parent cannot lawfully record a child’s telephone conversation with the other parent without them knowing (for example, by holding a tape recorder up to the phone).
In Family Law Court proceedings, admissibility of such evidence is subject to the Evidence Act 1995 (Cth).
Specifically, under section 135. the Court can refuse to admit evidence if its value is outweighed by the risk that it might be prejudicial to a party, misleading, confusing or create a waste of time.
Section 138 holds that evidence that has been obtained illegally or because of impropriety shall not be admitted unless the desirability of admitting it outweighs the undesirability of admitting any evidence obtained in such a manner. In other words, the Court may admit evidence of illegally intercepted telephone calls, if the probative value is high
The law in this area is not completely settled, there is a conflict between section 138 of the Evidence Act and section 63 of the Telecommunications Act, which provides a mandatory prohibition on using unlawfully intercepted information as evidence in a proceeding,
Case law examples
In recent years the Family Law Courts have dealt with the issue of whether recordings may be submitted as evidence.
In Coulter & Coulter (No. 2)  FCCA 1290, the mother was successful in having an illegally obtained recording of the father, made during the handover of the two children, admitted as evidence into the Court.
By setting up a video recording device in her hallway, the woman captured the discussion between herself and the father without his knowledge or consent.
The Court ruled the video recordings were admissible because she made them in the context of a relationship marred by family violence. Specifically, it ruled she made the videos to try and collect proof of the father’s violent actions for the purposes of obtaining a protection order against him.
The mother made and attempted to submit as evidence other recordings of private telephone discussions between the father and the children, without either party’s knowledge.
In contrast to the earlier video recording, these recordings of telephone conversations between the father and the children were deemed not admissible, even though the mother had made them to try and prove the father was attempting to alienate one of the children from her.
Instead, the Court found the recordings breached the father’s privacy. Additionally, it remarked, the surreptitious recordings had the capacity to adversely affect the children’s ‘right to a meaningful relationship with their father’.
In Janssen & Janssen  FamCA 345, the mother made recordings of conversations with the father where he made threats to her and her children, including physical violence.
The Court accepted the recordings as evidence of her allegations that domestic violence was a part of their relationship.
In Simmons & Simmons  FCCA 304, the mother planted a recording device on her children before they spent time with the father.
The Court admitted the evidence but reprimanded the mother for her actions: ‘…the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour.’
Family violence is defined by section 4AB of the Family Law Act 1975 as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”
If you have obtained a recording or video to prove you have been the victim of violence, it is important to disclose that to your Lawyer. The Court will consider the specific circumstances of such a case and may well permit admission into evidence.
Why legal advice is important
If you are party to a Family Law matter and have audio and/or visual recordings of the other party which you think may provide evidence helpful to your case, you should seek advice from experienced legal professionals.
Delaney & Delaney are Family Law experts who can advise on whether your recordings will meet the thresholds for admissibility in any Court proceedings.
Contact us today for an initial consultation about your Family Law matter.