Use of Video and Audio Recordings in Family Law Parenting Matters
It is relatively common, especially with today’s technology, for parties to seek to include video and sound recordings of parental behavior in court proceedings.
As family lawyers, we frequently come across parents who have recorded conversations, videos or audio using:
their phones (including where the phone may be hidden);
Dash cams;
CCTV or home security systems;
AVL conference facilities, for example to record communications or conversations between the children and other parent.
Given that in family law parenting matters the rules of evidence do not apply unless the Court decides otherwise, the Court uses its discretion on a case-by-case basis to determine the admissibility of particular evidence. How the Court treats the particular recording can depend on how and where the recording is made.
Here, we explore the law on recording private conversations where parents use their personal phone or other recording device without the other person’s knowledge or expectation of being recorded, rather than CCTV (with sound), security footage or dashcam recordings where people are placed on notice before the conversation occurs or should reasonably expect to be recorded.
Important Definitions
A private conversation is usually defined as one that at least one party to the conversation would expect not to overheard by anyone who isn’t a party to the conversation or who they have not consented to hearing the conversation.
A listening device usually includes any instrument, apparatus, equipment or device capable of being used to listen or record a private conversation.
The law and definitions for recording or listening to private conversations can vary in each state and territory and we encourage you to contact a lawyer if you need assistance.
Can private recordings be used in court?
It is generally unlawful in the first instance to record private conversations without permission, although there are exceptions, for example where the recording is necessary to protect a person’s lawful interests.
There are many examples of what may be a lawful interest. Courts will carefully assess whether the person actually has a lawful interest. It has to be more than just a desire to have a reliable recording and the context and facts surrounding the matter can be vital. In family law parenting matters, a lawful interest might be where there are allegations of family violence in which case, a recording would likely be considered necessary to protect the victim’s legal interests. There is also a public interest argument that victims of family violence should be able to record evidence of that violence as it usually occurs in private behind ‘closed doors’.
It is also relevant whether arguments are considered ‘private’ in any event, with some courts finding that such recordings are not private as one party is yelling and it could be inferred that the person did not intend the conversation to be private. That is, the person yelling ought to have reasonably known that the conversation could or would be over-heard. It also may be the case that if it is clear that a person is being videoed and continues to speak or yell, then implied consent to the videoing could be inferred.
If evidence gained through a recording is found to be in contravention of an Australian law or improperly obtained, it does not necessarily mean that it will be automatically excluded in family law proceedings.
Section 138 of the Evidence Act 1995 can be used to determine whether improperly obtained material can be admitted into evidence. It is a two-limb test, whereby the court will assess whether the evidence was improperly obtained, and if so will then balance whether the desirability of admitting the evidence outweighs the undesirability of admitting the evidence given the way in which it was obtained.
The court is directed to consider a number of matters when determining whether to admit the evidence including (and noting this list is non-exhaustive):
the probative value of the evidence;
importance of the evidence, relevance;
factors that go to the nature of the impropriety in gathering the evidence; and
the difficulty of obtaining the evidence without impropriety or contravention of an Australian law.
For parenting matters, it is likely that the evidence relevant to parenting capacity and the nature of the relationships between the parents and the children are important matters for determination, particularly where there is an allegation of risk. Consequently, even if the recording is unlawful it is possible that it will still be allowed in family law parenting proceedings.
Therefore, if parents misbehave at changeover or in other circumstances in relation to the children, then it is possible that private recordings without permission can be included as evidence in court proceedings.
Does this mean that parents should be recording their interactions with each other and the children?
Repeated recordings can be more reflective of other issues which indicate the inability of the parents to co-parent. For example, parents who record each other misbehaving at changeover, out the front of school, sporting or other community events are likely also negatively impacting their children and can highlight that the parents or one of them are not particularly child focused.
Parents who record each other need to be cautious to ensure that they are actually protecting a lawful interest. If a parent regularly records conversations that are relatively normal and are found out, then they could face potential allegations that they have breached a state/territory listening devices act.
Recording a partner in certain circumstances may also be considered Family Violence.
The information provided in this blog is not to be taken as legal advice and if you require further information or assistance we recommend you contact our office to seek legal advice.