Can I use privately recorded messages in the NSW Family Courts?

The short answer is “it depends”.

The Surveillance Devices Act 2007(NSW)

Under this Act it is illegal to record a private conversation without consent.

However, in Family Law Proceedings the Court may exercise its discretion to allow recordings into evidence in particular circumstances.

This may be to provide evidence of stalking and intimidation when there are conflicting stories before the Court and one party and/or the children are at risk of harm.

This underlines the two-edged sword of technology. The legislation was put in place to protect individuals from abuse and stalking via the use of technology however that same technology may be the only way to prove the intimidation, abuse and in some cases, physical attacks on the abused party.

What does the Family Court say?

Specifically in parenting proceedings the Court has to ensure that the best interests of the children remain paramount as well as the safety of all parties. This consideration is also essential in property proceedings particularly if the separated parties are highly conflicted.

The Court may allow evidence to be presented even when it has been obtained illegally. In all courts, whether civil or criminal, Section 138 of the Evidence Act 1995 (Cth) allows for this exception when the evidence is considered so important that it should be admitted.

Cases Where Recordings Have Been Admitted

Courts will exercise the discretion to admit recordings where there is violence, risk of violence and/or the need for corroborative evidence that cannot be obtained in any other way.

In Shelbourne & Shelbourne [2017] FamCA 761 the Court allowed a video recording which the father had taken of the mother being physically aggressive towards him in the presence of the children. Given that the mother had alleged that the father had perpetrated acts of family violence, the Court allowed the father’s recordings to be heard to counter the mother’s false allegations. It was important for the Court to take the allegations seriously in order to determine what orders would be in the best interests of the children of the relationship and what parenting arrangements were suitable to protect the children.

However, the Court ordered that the father could only show the recording outside the Court to any person apart from legal representative and the single expert appointed in the legal proceedings.

What Goes on Behind Closed Doors

Where there is real fear of violence and a party has no other means of demonstrating threatening behaviour, the Court may allow illegally obtained recordings as there may be no other way of proving what is happening in private within the family.

Section 4AB of the Family Law Act 1975 defines family violence 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.”

Where one party is subject to coercive controlling behaviour, no one outside the family may be aware of what is really happening. In such circumstances, the recordings may be the only proof of this behaviour.

Judge Berman accepted in evidence before the Court, recordings made by the wife of the husband in Garner & Garner [2016] FamCA 630 where the husband swore at the wife and threatened suicide. His Honour accepted that the language used satisfied the definition of family violence and the need for the recordings in the context of the best interests of the children and their need to be protected.

Where Violence is not an Issue

A video recording was admitted into evidence in the case of Jasper & Corrigan (No. 2) [2017] FCCA 1467 to assist the Court in determining whether a de facto relationship existed. Even though the couple had a 3 year old daughter the father claimed that the relationship was purely sexual and had only existed for 15 months.

The Judge stated that there was no actual evidence to confirm the existence or non-existence of a de facto relationship. The recording was the only information that could provide evidence for the mother’s claim.

Although illegally obtained without the knowledge or consent of the father, the Judge found that as it was produced for the protection of the legitimate interest of a party, the mother, it could be allowed.

Even though the recording was admitted, Judge Altobelli warned that it would ultimately be a matter of weight to be given to the evidence in the circumstances of the case.

His Honour stated that “… all the Court is ruling on is admissibility of evidence. It is not ruling on the weight that will be given to evidence. Evidence might be admissible, but it might not receive much weight.” [at paragraph 23]

Negative Impact of Recordings

The case of Essa & Salter [2021] FamCA 22 is illustrative of the dangers of recording a party to prove a point rather than for protection from a real risk of harm. In fact the Judge found that the act of making the recordings was a harm in itself.

Her Honour, Justice Rees was critical of the father for recording the child of the relationship to force the child to tell him whether his “mummy had told him to say something bad” so that the father could prove that the mother was coaching the child. Her Honour stated that this “additional evidence … causes me concern as to the father’s capacity to promote a positive relationship with his mother if B [the child] was to live with him.”

In cross-examination the father said that “The forensic purpose of producing that material is to directly address the issues that I had been concerned about for a very long time.”

However, rather than provide evidence that would support the father’s case that the child should live with him, the video demonstrated that the father was not child-focused and would not encourage the child's relationship with the mother if he were to live with him.

Her Honour opined that “…what the video demonstrates is the father pressing and pushing his young son to make a negative comment about his mother to prove his case. This was unnecessary pressure on his young son as all the father needed to do was rely upon [the Expert’s] report and her observations in reporting the child’s comments to her.”

Additionally the father video-recorded changeovers and interactions with the mother. Rather than support his case that the mother was irrational, the recordings supported the mother’s case that the father was controlling and alerted the judge to the father’s inability to see the negative impact the behaviour was having on the child.

Justice Rees stated “Unfortunately the father, by exacerbating the mother’s fragility which I accept she has and inflaming her temper, is the parent who has exposed his son to risk as he continued to film her and expose his son to this unacceptable behaviour when he could have defused the situation… it could well be that he knew the mother would react in this way, hence his filming of her, and his son was but collateral damage.”

What Determines Admissibility of Recordings?

The NSW Supreme Court case of Rathswohl v Court [2020] NSWSC 1490 provides a useful summary of matters the Courts will consider when deciding that a recording illegally obtained may still be allowed into evidence to protect the legitimate interests of a party:

• Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose;

• Whether it was important for protection from false allegations particularly where the conversation involves a serious criminal matter or there are genuine concerns for the safety of the recorder or that of their children;

• Whether there are alternate practical means of recording the conversation such as reporting the matter to police; and

• Whether there is a serious dispute between the parties where determination of the dispute would depend on the oral evidence of the recording.

Be Careful What You Wish For

Although the recordings of bad behaviour by one party may see to support the case of the other party of a separated couple in Family Law proceedings, it is important to seek legal advice to understand the permutations and ramifications that may ensue from seeking to include them in evidence.

Even when the recordings are allowed before the Court, the Court may not give them any weight, dismissing the contents as irrelevant or unhelpful. Significantly, the Court may interpret the recording in a way that was not intended by the person making the recording.

Family Law mandates that the best interests of the child or children must always be paramount. If the recordings demonstrate that a parent or both parents are not child-focused and prefer to record the screaming exchanges rather than protect the child from observing these verbally abusive outbursts, there may be extremely negative consequences for the parents in the parenting orders that ensue.

What if Recordings May lead to Penalties?

When couples separate there can be ongoing conflict where one party may want to hurt the other, often without considering all the consequences. In some cases, there is so much bitterness that one party will want to punish the other.

Legal advisors will do their best to see that matters settle and do not involve lengthy court proceedings. The Central Practice Directions published by the Court when the Federal Circuit and Family Court of Australia was announced on 1 September 2021, reiterate the importance of achieving the key objective of dealing “efficiently with Applications on a national basis in a timely, cost effective and safe way for all litigants.”

However, if a client produces documents via telephone or video-recordings which are accepted into evidence despite being illegally obtained, one or both party may need to apply for a S128 Certificate against self-incrimination.

For example, one party may have recordings of the other party directing the accountant to re-arrange company documents in a way that is against the Family Law provisions. This could lead to a charge of “contempt” with a financial penalty. If there are serious breaches of any Australian Law there may also be criminal penalties.

Accordingly, the recorded party may seek a S128 Certificate to allow that person to give evidence explaining the circumstances while not incurring any penalty from the Court. If the Court grants the Certificate, then any admission made during cross-examination cannot be used against the witness in any subsequent proceedings in another Court.

This is not an absolute protection. Judges have referred parties to the appropriate authorities for criminal conduct such as misappropriating funds and obtaining a benefit for that.

TO RECORD OR NOT TO RECORD?

As it is illegal to record conversations without the consent of all parties, is illegal in Australia, it is not guaranteed that the Court will admit them into evidence.
There must be a real need to give the Court information about violence or threats of violence in relation to one party and/or the children of separating couples before the recordings will be considered for admission into evidence.

Even if allowed before the Court, the recordings may have the opposite effect and impact that was intended by the person making the recordings.

It is preferable to find other evidence which will give independent third-party validation of the point of view or case that is being put to the Court.

In any event, it is essential that you seek legal advice to guide you through this difficult time.

Please do not hesitate to contact us if any of the above material concerns you.

This article is information purposes only and does not constitute legal advice and should not be relied on.