Recording Conversations & Family Law Proceedings
It is understandable that circumstances may arise where you want to record a conversation with another person.
You may wish to retain an accurate record of what was said, or have something tangible to rely upon in the future that supports the existence of an issue or concern.
The desire to rely upon a recorded conversation may seem particularly critical if you are involved in family law proceedings.
However, while it may be tempting to record conversations with another person (typically an ex-partner or relevant third party) to use as evidence in family law proceedings, it is important to understand the legal implications of doing so.
In Australia, it is generally acceptable to record conversations with the consent of the other person(s) involved – with some exceptions, such as if the conversation occurs in a place where recordings are prohibited, such as in Court, or in prison.
However, the legal ramifications of recording a conversation with another person without their knowledge or consent can be significant.
The law regarding the admissibility of recorded conversations as evidence in Court proceedings is complex, and is governed by a number of Commonwealth and State-specific legislation such as:
- the Family Law Act 1975
- the Evidence Act 1995 (Cth)
- the Telecommunications (Interception and Access) Act (Cth) 1979, as well as relevant case law
- in Queensland – the Invasion of Privacy Act 1971 (Qld) and the Criminal Code 1899 (Qld).
Different Laws in Different States
To further complicate things, laws regarding recording conversations vary between States.
In Queensland, section 43(1) of the Invasion of Privacy Act 1971 (Qld) (“the Act”) provides that a person is guilty of an offence if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable for conviction or indictment, carrying a maximum penalty of 40 penalty units (currently, $6,192) or imprisonment for 2 years.
However, 43(2) of the Act provides that the act of recording a “private conversation” is not an offence under the Act if the person making the recording is an active participant in the conversation. This applies to conversations conducted in person, over the phone, or through electronic platforms like Zoom or Messenger.
In essence, a person may record a conversation they are directly involved in without the consent of the other parties to that conversation.
Additionally, there are limitations on what can be done with the recorded material. Distributing the recording is only permitted if any of the lawful exceptions apply, as such the parties’ consent or the recording being used for legal proceedings. Further exceptions for recording, using, and publishing private conversations exist for government officials, law enforcement officers, and matters involving public interest.
In Queensland, the act of making a visual recording of a person is governed the Criminal Code 1899 (Qld), specifically, it is an offence to record someone without their consent when a reasonable adult would expect to be afforded privacy, such as, when they are in a private place or engaging in a private act.
Section 227B provides that distributing a prohibited visual recording of someone without their consent is also an offence that carries a maximum penalty of 3 years imprisonment.
By comparison, in New South Wales it is an offence to use a listening device or optical surveillance device (a device capable of recording visually) to record a private conversation without the consent of all parties.
In proceedings that take place in the Federal Circuit and Family Court of Australia (“Court”), the admissibility of such evidence is subject to the Evidence Act 1995 (Cth).
Section 135 of the Evidence Act provides that the Court has a general discretion to exclude / refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
- be unfairly prejudicial to a party; or
- be misleading or confusing; or
- cause or result in undue waste of time.
Further, section 138 of the Evidence Act provides that the Court has a discretion to exclude improperly or illegally obtained evidence. Specifically, evidence that was obtained:
- improperly or in contravention of an Australian law; or
- in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted – unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
Is a Recording Admissible Evidence?
When assessing the use of recordings in parenting proceedings, a number of considerations apply, such as:
- Relevance: Are the recordings relevant to the issues in dispute between the parties?
- Probative value: How significant are the issues to which the recordings relate in the context of the proceedings?
- Whether other evidence to support the allegations can be obtained.
- What inferences might be drawn about the party who made the recordings?
- Whether the circumstances might support a finding that the parent had a lawful interest in making the recording and has not contravened the legislation.
The above considerations are not an exhaustive list.
In short, the admissibility (or inadmissibility) of a recording in Family Law proceedings will be assessed by the Court on a case-by-case basis, in accordance with relevant Commonwealth and State legislation, case law and the individual circumstances of the parties.
Recordings and Domestic Violence
It is important to also consider the ramifications of recording another person without their consent in other jurisdictions, such as domestic violence proceedings in the Magistrates’ Court.
It is not unusual for a person, upon realising they have been recorded without their knowledge or consent, to consider applying for a Protection Order against the person who recorded them, particularly in circumstances where there are already allegations of domestic violence and coercive behaviours, such as monitoring a person and keeping them under surveillance.
Ultimately, whether or not you can record another person and use the recording in family law proceedings in Australia depends upon a range of factors, including the laws in your State or Territory, the relevance and reliability of the recording as evidence, and the ethical and practical considerations involved.