Can I secretly record my ex for my family law matter?

While settling a messy divorce, it may be tempting to hide your phone in your back pocket and secretly record a private conversation with your ex to use against them in court during your family law proceedings. Despite the appeal, it is important to recognise that there are only limited circumstances in which the Courts will accept this as evidence.

Read on to learn about the potentially significant ramifications of recordings and its relationship with family law proceedings.

Private recordings under the Surveillance Devices Act 2007 (NSW)

In New South Wales, it is illegal to record a private conversation without the consent of the other party. This is legislated by section 7(1) of the Surveillance Devices Act 2007 (NSW), which makes it an offence to knowingly use a device to overhear, record, monitor or listen to a private conversation. A private conversation is defined by the Act as a words spoken by one person to another:

 “in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only by themselves, or by a person with consent of all the parties to the conversation”.

This is a question of fact, determined objectively by the Family Court of Australia on a case-by-case basis.

Of course, there are exceptions to this. Section 7(1) does not apply if all the parties have consented, either expressly or impliedly, to being recorded. The conditions for consent are stipulated under sub-section (3)(b), which asserts that private conversations can be used if it:

• Is ‘reasonably necessary’ for the protection of the lawful interests of the principal party; or,
• Is not made for the purpose of communicating or publishing the conversation, or a report of that conversation, to persons who are not parties to the conversation.

A private conversation involving a principal party may also be admitted under sub-section (2)(c) if the recording was unintentional.

If found guilty of this offence, the maximum penalty is 100 penalty units ($11,000.00) or five (5) years’ imprisonment, or both. This is increased to $55,000.00 for corporations.

The concept of ‘reasonably necessary’

As mentioned, the Surveillance Devices Act 2007 provides that illegally obtained recordings may be in a court of law if it is ‘reasonably necessary’ to do so. In determining its admissibility, one must look towards section 138 of the Evidence Act 1995 (Cth), which stipulates that a court may take into consideration factors such as:

1. The probative valueof the evidence; and
2. The importance of the evidence in the proceeding; and
3. The nature of the relevantoffence, cause of action or defence and the nature of the subject-matter of the proceeding; and
4. The gravity of the impropriety or contravention; and
5. Whether the impropriety or contravention was deliberate or reckless; and
6. 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
7. 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
8. The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law

when deciding to admit the evidence.

The Court will also likely consider section 135 of the Evidence Act 1995 (Cth), which provides a discretion to exclude evidence containing high probative value (that is, evidence that could rationally affect the assessment of the probability of the existence of a fact in issue) if it is substantially outweighed by the danger that the evidence might:

1. be unfairly prejudicial to a party; or
2. be misleading or confusing; or
3. cause or result in undue waste of time.

These sections illustrate the onerous task that judges face when determining whether to admit the evidence based on public interest principles, or disallow it based on its contravention of the law. This is a balancing exercise that should consider all relevant factors rather than in isolation of one another.

A recent case study – Shelbourne v Shelbourne [2017] FamCA 761

The recent decision of Shelbourne v Shelbourne [2017] FamCA 761 illustrates how the Family Courts will tender illegally obtained evidence in circumstances involving the need to protect children against family violence, child abuse and neglect.

Facts

Mr Shelbourne (“the father”) sought to gain sole parental responsibility for their four children by adducing a number of video recordings to prove that Ms Shelbourne (“the mother”) displayed violent and threatening behaviour towards her children.

The videos, recorded on the father’s mobile phone between March 2016 and December 2016, depicts several instances of foul behaviour from the mother towards her children.

• On 18 September, the mother is seen berating the father while he is in the car. The father says that the mother tried to strangle him and tells her to “go away”. The mother responds by saying, “I wish you would die” and “I’m going to kill the baby”. She is also seen holding the baby, who was 3 months old, and saying, “I am going to take the baby and find the highest thing and jump”.
• On 1 December, a recording illustrates a dispute between the mother and father. One of the children can be heard saying, “We want to get some sleep”, while the mother continues to berate the father over the children’s beds.
• On 29 December, the mother is seen with her two children, berating her father, who begs her to stop screaming. Despite recognising the distressed state of her children, she refuses to stop, and subsequently shouts to them, “Daddy shouldn’t be doing this to me”. The father attempts to leave and the mother prevents him from going. At one point, the four children are seen crying and calling out “Daddy, Daddy”. One of the children is heard to say, “I can’t take this” while crying into the father’s chest.

The use of these recordings were opposed by the counsel for the mother for three reasons:

1. They were recorded illegally, under section 7 of the Surveillance Devices Act;
2. They were unfairly prejudicial towards the mother; and
3. The recordings were self-serving and do not record the whole of each incident

Held

Justice Rees of the Family Court of Australia held that evidence of these recordings was not unfairly prejudicial merely because they damaged the credibility of the mother while supporting the father’s case.

First, the Court found that this case satisfied the exception under section 7(3)(b)(i) of the Surveillance Devices Act as it involved allegations of violence and threats and was hence ‘reasonably necessary’ for the protection of the lawful interests of the father.

Second, the Court found through its application of section 135 of the Evidence Act that assisting the parties in the determination of proper parenting arrangements for the children outweighs any form of prejudice against the mother. There will always be a degree of unfairness for any evidence, especially when there is no opportunity to cross-examine the accused. However, the recordings, while self-serving, needed to be tendered as evidence to protect the welfare of the children.

Last, the Court considered the recent family law case of Gorman & Huffman and Anor [2016] FamCAFC 174, to assert how self-serving or otherwise ‘staged’ recordings do not go to the question of admissibility, but towards the weight to be attached to evidence once admitted.  In this case, Hannam J also noted that it is “notoriously difficult to obtain evidence of family violence which takes place behind closed doors”. The recordings illustrate the father’s calm and collected nature in comparison to the mother’ unrestrained and erratic behaviour and shows how the children turn to their father for comfort.

Thus, the Court concluded that the recordings should be admitted as evidence but remained conscious of the fact that the whole incident was not recorded.

Of note, an Independent Children’s Lawyer was also appointed on 4 September 2017 to protect the best interests of the children.

Reporting and publication of family law matters

Family law proceedings are understandably frustrating, and many will be tempted to take to social media to discuss their concerns.

Despite the appeal, section 121 of the Family Law Act 1975 (Cth) makes it an offence to publish “by other electronic means, or otherwise [disseminate] to the public or a section of the public” any account of anything that would identify a party to the proceedings, or a person who is related to, or associated with a party to the proceedings.

In other words, any social media activity that openly discusses ongoing family law proceedings may adversely affect your proceedings. Think very carefully about the remarks that you make on social media. If ever in doubt, don’t post it!

Let us help you with your family law matter

If you’re seeking help with a divorce application or a family law matter, it’s time to find a reliable and experienced divorce lawyer.

Here at JB Solicitors, we’ll make the divorce process as pain-free as possible. We have fixed-free pricing for family law, giving you a clear sense of the cost of your divorce from the start. We’ll help you out every step of the way, from filing the Application, filing and serving it, up to the finalisation of your divorce.

With years of experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.

Contact JB Solicitors to get started on your annulment proceedings, or for assistance with any other legal matter.