Technology advances have placed the ability to video or audio record conversations at
the tip of everyone’s fingers. Separation can often be difficult and may involve significant
conflict, and it is not uncommon for parties to a separation to record interactions with their
former partners, or consider doing so.
Recordings might be of situations such as the events at or prior to separation,
changeovers, or conversations before or after separation regarding issues in dispute.
Although this may help by providing factual evidence, when is it allowed?
Section 138 of the Evidence Act 1995 (Cth) allows a Court to admit evidence that might
otherwise be considered to be illegally acquired, however, the courts must consider
several factors.
In accordance with The Family Law Act 1975 (“the Act”), The Federal Circuit and Family
Court of Australia (‘the Court’) is bound by the usual rules of evidence, however, the Court
has discretion over the admissibility of evidence presented.
When are recordings allowed to be used as evidence in Family Law proceedings?
The first general rule when it comes to recording conversations and when they are allowed
to be used as evidence is whether the person who made the recording is a party to the
conversation. In most circumstances it is not an offence to record a private conversation
if the recording party is a party to the conversation, or if they have the consent to make
the recording, however, the law in this area can be difficult to navigate and so legal advice
prior to recording is always recommended.
When considering whether or not a recording of a private conversation will be allowed to
be utilised in evidence during Family Law proceedings, the Court is likely to consider in
the first instance, amongst other considerations:
1. Whether the person who made the recording is a party to the conversation.
2. Whether the people being recorded were aware they were being recorded.
3. Whether the people being recorded explicitly consented to being recorded.
4. Whether consent to recording can be implied.
Whether or not recordings will be permitted as evidence in a Family Law matter will usually
ultimately be at the discretion of the Court, sometimes this might be after hearing
arguments on the point from each side. Judges will use their direction when deciding
whether the evidence will be used.
In addition to questions of admissibility as evidence, recordings of conversations might
sometimes be considered by a Judge to appear to be sneaky behaviour or evidence
gathering in order to advance a position in Court rather than record a sincerely concerning
behaviour. Parties should consider the impact these types of recordings might have upon
their case, including questions of how showing this recording may influence the Judge’s
opinion of the party providing said recordings.
Recording and Family Violence
When there are allegations of family violence in a case, it is not uncommon for audio or
video recordings to be sought to be relied upon by one or multiple parties, often as
evidence of the alleged behaviour of one of the parties. In some cases, Judges have used
discretion to accept recordings that display verbal abuse and/or coercive and controlling
behaviours, even in circumstances where it was confirmed that consent was not granted
for the recording to have occurred.
As an example, in the recent case of Arena & Arena (2024), initially the father showed no
signs of abusive behaviour. The mother in the proceedings recorded evidence of her
husband’s emotional instability and violent behaviour towards her and their children,
without his consent, to demonstrate his inability to control his emotions.
Ultimately, the Court accepted these recordings as evidence, because it was decided that
the Court is required to balance the seriousness of the Mother’s conduct against the risk
of harm to the children if the evidence was dismissed.
Summary
Evidence obtained by audio or video recordings can be used in family law proceedings,
but a series of factors as set out in this information sheet should be considered when
deciding whether to record, and whether to then rely on those recordings.
Taking recordings in a family law context, and seeking to have such recordings admitted
into evidence is complicated, and the prior advice and guidance of an experienced
family lawyer is strongly advised.
Next steps
If you or someone you know wants more information or needs help or advice with their
family law matter, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course
of action.