Recordings in Family Law Cases – Risky or Resourceful?

Gathering evidence in my family law matter

One of the biggest challenges parties face in family law cases is gathering evidence in support of their case. As most interactions in family law matters occur within the parties’ private residences, it is often difficult for parties to provide evidence to the Court in relation to allegations they make about the behaviour of other parties.

A way that some people seek to overcome this hurdle is by making audio or video recordings of other parties without their knowledge. Whilst recordings can be helpful in certain circumstances within family law matters, caution needs to be exercised as such recordings can often be inadmissible in Court, damaging to your case and in some cases even illegal.

Am I breaking the law by recording someone?

The laws about recording people without their knowledge vary from state to state within Australia. Pursuant to section 43(2) of the Invasion of Privacy Act 1971 (Qld), it is legal in Queensland for you to record a conversation with another person without their knowledge where you are a party to a private conversation with that person. It is important to note, however, that this does not extend to a private conversation you are not directly involved in, such as a conversation between a child and another parent if you are not involved in the actual conversation. As well as restrictions around the types of conversations you can record, there are also strict legal restrictions in Queensland around the types of listening devices that can be used, and the circumstances under which you can disclose a recording, which further complicate the making of recordings in Queensland.

Illegal recordings

In other states around Australia the laws with respect to recording are similarly complex. In some states recordings are illegal in almost all circumstances without consent, while in others there are laws similar to those in Queensland. It is important to understand the laws applicable to your personal circumstances at any given time to ensure you are not acting illegally when making recordings you intend to use as evidence. If a recording is obtained illegally, you will likely find that you are unable to use it at all in your family law proceedings and you even risk potential criminal charges against you for having made such a recording. It is therefore extremely important to seek legal advice in relation to your personal circumstances before making a recording to ensure you are not acting illegally.

A case example – Coulter & Coulter

An example can be found in the case of Coulter & Coulter (No.2) [2019] FCCA 1290. In this case, the mother in a parenting matter had made audio recordings of the father’s telephone conversations with the children without the knowledge of the father. The mother alleged that these recordings were evidence that the father engaged in inappropriate conversations with the children in an attempt to alienate the children from her and involve them in adult disputes. The Judge in this matter ultimately found that the audio recordings were illegal, and then considered whether to use his discretion to allow the recordings to be admitted anyway on the basis that although they were illegally obtained, they were of such evidential value to the case that they were worth considering.

The Judge ultimately decided not to admit the recordings and in his judgement the Judge expressed a view that the mother’s recording of the father’s conversations with the children was “improper” and “a serious invasion of the father’s privacy and the rights of the children”. The Judge noted the right of the children to have a meaningful relationship with the father and a right to communicate with the father including by way of private conversations.

Given the complexity of legal issues surrounding the use of recordings in family law matters, and the potential risk of acting illegally or to the detriment of your overall case, we strongly recommend that you seek legal advice from a lawyer prior to making recordings or submitting them as evidence in your family law matter.

Contact us

If you need legal advice regarding your specific circumstances regarding recordings in family law matters, please contact our office and speak to one of our experienced family law practitioners for professional legal advice. Alternatively, please send a direct online enquiry setting out your question.

This article was prepared by Bonnie O’Brien, Senior Associate with collaboration from Vince Hede, Director and leader of the Family Law Team across Hede Byrne & Hall’s Toowoomba, Warwick and Roma offices.