Smartphones and smart technology have permeated almost all aspects of our daily lives. It is easier than ever before to access and record information. Whilst most people use their smartphones to snap the perfect profile pic or record “home movies”; the use of recording technology is increasing prevalent in Family Law proceedings as people try to record the other parent at changeovers or conversations with their former partner to try and gain advantage in negotiations at a later date.
In New South Wales, the Surveillance Devices Act 2007 prohibits the recording of audio conversations without the consent of all parties unless it is reasonably necessary for the purpose of protecting the lawful interests of the party who records the conversation. Other States and Territories in Australia have their own legislation in relation to surveillance. In Queensland, Victoria and the Northern Territory, it is not a criminal offence for a party to a private conversation to record that conversation without the consent of the other participants, but it is an offence in those jurisdictions to publish that recording unless permitted in limited circumstances including in legal proceedings.
During the ABC Law Reports program on 17 January 2017 former Chief Justice Diana Bryant acknowledged that the use of such recordings in family law proceedings is “widespread”. Our office has also fielded an increasing number of questions when audio and video recordings may be admissible in Court.
The question of whether illegally obtained recordings ought to be admitted as evidence is considered in the circumstances of each case. When considering whether to admit such recordings into evidence the Court must consider:
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
This issue was recently considered by the Federal Circuit Court of Australia in the matter of Coulter & Coulter (No.2) 
As the matter was heard and determined in Adelaide, the Court considered the Listening and Surveillance Devices Act 1972 (SA) and Surveillance Devices Act 2016 (SA).
In Coulter the Father made an application to exclude evidence audio and video recordings the Mother proposed to introduce at Trial. The evidence in question was two video recordings of interactions between the father and the mother at changeovers on two separate dates (“the video recordings”) and two audio recordings of conversations between the father the children (“the audio recordings”). Both the video and audio recordings were made by the mother without the knowledge of the father.
Ultimately Judge Heffernan allowed the video recordings into evidence. The Mother in her Affidavit had alleged that at the time the video recordings were made, she considered herself a victim of domestic violence and that she was having ongoing difficulties with the Father at changeovers. Further, at the time the video recordings were made the Mother was in the process of applying for an Intervention Order against the Father. Judge Heffernan, after considering legislation and case law, allowed the video recordings into evidence as he considered the recording had been made by the Mother for the protection of her lawful interests.
The audio recordings however, were not permitted into evidence as Judge Heffernan did not consider the content of the audio recordings to be in the public interest, nor did he consider they were made for the protection of the mother’s lawful interests. Judge Heffernan commented:
Her conduct amounts to a serious invasion of the father’s privacy and the rights of the children. The children have a right to a meaningful relationship with the father. That obviously entails a right to communicate with the father including by way of private conversations. The relationship between a parent and a child could be significantly compromised if a parent could not communicate freely with a child without fear of being covertly recorded. That is particularly so in circumstances where, by reason of not being the primary carer, one parent relies on telephone communication with a child in order to maintain a meaningful relationship with them.
Notwithstanding Judge Heffernan allowed the video recordings into evidence, in the concluding paragraph of his judgment he cautions parties on reliance of this type of evidence noting:
It is well known that parenting proceedings under the Family Law Act can and often do involve a high degree of stress, acrimony, and bitterness for the parties. Disputes and old grievances can become deeply entrenched, leading to the proceedings themselves becoming unnecessarily protracted. Such an outcome is never in the interests of the children, who face the risk of being lost in the at times selfish and internecine squabbling of the parents. The Court should be slow to give its imprimatur to any conduct by the parties that encourages such an outcome. We live in an age where our electronic devices present a myriad of opportunities to covertly make audio and video recordings and monitor electronically stored information. Electronically stored information can be covertly and illegally used by third parties. The ubiquity of smart phones means that every person potentially has a tracking device in their pocket. If in proceedings under the Family Law Act, the Court were to readily admit evidence otherwise improperly or illegally obtained, the temptation, and for many parties the tendency, would be to engage in widespread covert recording of private conversations which would contribute to a lack of trust between the parties, the unnecessary prolongation of disputes, and potentially erode the element of privacy necessary in any meaningful relationship between a parent and a child. Further, it is necessary that this Court recognise the operation of and public policy behind State law making it prima facie illegal to covertly record a private conversation.
Parties and lawyers need to give careful consideration to obtaining and seeking to rely upon video or audio recordings, obtained without the knowledge or consent of the other party in family law proceedings. In many circumstances reliance upon such recordings can have an adverse effect on the case of the party seeking to rely upon the recording.
If you have questions about the suitability of evidence you wish to gather for use in family law proceedings or require general law advice, please do not hesitate to our Family Law team:
Vicki Kelly, Accredited Family Law Specialist, firstname.lastname@example.org