Secret recordings in Family Law
The recording of a person without their permission is generally not allowed in New South Wales. There are both State and Federal laws which deal with secretly recording another person.
In NSW there are laws that make it an offence to record someone without their permission, and there are provisions in both NSW and the Commonwealth Evidence Acts that deal with how a party may use secretly recorded evidence. In certain circumstances the Family Law Courts have permitted secret recordings into evidence.
In this article we will explore the legal framework around secret recordings including: -
When is making a secret recording an offence?
When is making a secret recording not an offence?
When will the Court allow a party to rely on evidence that has been secretly recorded?
We have also looked at some family law cases where the Courts have been asked to decide whether to allow secretly recorded evidence.
When is making a secret recording an offence?
In NSW you will commit an offence if you record someone without their permission. Section 7(1) of the Surveillance Devices Act provides that: -
(1) A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
There are penalties for breaching this provision which include significant fines or up to five years imprisonment.
When is making a secret recording not an offence?
It makes sense that the Surveillance Devices Act confirms it is not an offence to record a conversation if all the parties to the conversation have given their consent to the recording [Section 7(3)(a) Surveillance Devices Act].
The Surveillance Devices Act also provides that it will not be an offence to record a private conversation if: -
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
The exemption at 7(3)(b) is not as straightforward as all parties consenting. When trying to rely on a secret recording parties need to demonstrate that the recording was reasonably necessary to protect the lawful interest of that person.
There is no definition of lawful interest in the legislation. There have been a number of cases – including criminal cases - which have looked at what is meant by the term lawful interest. In the criminal case of R v Lee the Court noted that the following reasons would constitute a lawful interest: -
[the] desire of a witness to protect her credibility generally; to support her credibility if she had to give evidence in a court proceeding about the matter; and to protect herself "against exposure to being charged with making false allegations against other people about matters of considerable seriousness.
When will the Court allow a party to rely on evidence that has been secretly recorded?
There are strict rules about what evidence can be relied upon in Court proceedings. These rules are contained in each State’s Evidence Acts and the Commonwealth Evidence Act.
The Commonwealth and NSW Evidence Act both contain the provisions that deal with how the Courts may deal with secretly recorded conversations. These types of recordings fall under the provisions that deal with evidence that has been obtained improperly or in breach of Australian law. Section 138 of the Evidence Act 1995 (Cth) states: -
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) 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.
The NSW Evidence Act also has a similar provision excluding improperly obtained evidence from being used in Court proceedings.
When working out whether it is desirable to allow the evidence, the Court should consider: -
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) 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
(g) 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
(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
[Section 138(3) Evidence Act (Cth)]
How has the Family Court interpreted the legislation?
The Family Courts have been asked to consider whether to allow secretly taped recordings in several cases. The Court has held it can admit such evidence if it satisfies section 7(3) of the Surveillance Devices Act or s138(3) of the Evidence Act.
The Family Law Court have allowed secretly recorded evidence in cases which involved domestic violence. An example of this is the case of Corby & Corby [2015] FCCA 1099. In that case the Court noted that the Mother’s recording of the Father’s abusive behaviours was reasonably necessary to protect her lawful interest. In that case the Court said: -
"the Mother had the right to protect her interest not to be intimidated or harassed, and not to be forced to respond to the Father's demands for sexual activity, and that section 7(3)(b)(i) is therefore satisfied in relation to the term "lawful interests"'
The Court went on to say:
I find no reason to infer that the recording was not made for the purpose of the complainant having some evidence which she could use to convince others to believe her, or to corroborate her word, or to protect herself or X from further such behaviour. While the complainant in the present case is an adult, she was, if her evidence is accepted, caught up in an abusive relationship with a man who damaged her self-worth and left her miserable and exhausted.
The evidence also discloses that the Father may have had a public face very different from his private face… the Father may be charming and delightful in company, while intimidating and frightening in the home, as alleged by the Mother. The Mother here…was not trying to extract an admission…but rather to establish her credibility if there was ever a dispute about what had actually happened.
Another example was the case of Huffman & Gorman (No 2) [2014]. In that case the Father secretly recorded a conversation between himself and the Mother. The Father was seeking Orders for the children to live with him, arguing that the Mother was controlling and violent towards the children causing them psychological harm.
In Hauffman the Court did not find that it was reasonably necessary to protect the Father’s lawful interest. The Court then turned to consider whether the evidence could be admitted under the Evidence Act. In weighing up all the considerations the Court was of the view that: -
…taking all of these matters into account the desirability of admitting evidence of family violence in a hearing where the best interests of children are paramount outweighs the undesirability of admitting evidence which was obtained unlawfully
The Court have also looked at cases where family violence was not a relevant factor. In Jasper & Corrigan (No 2) [2017] the Court were asked to admit secret recordings to prove that there was a de facto relationship between the parties. In that case the Court said: -
The violence that is referred to in those cases took place in private. The notoriety of establishing that which occurs in private, especially family violence, is something that the Full Court of the Family Court has taken judicial notice of. How is it conceptually different here? In private, the Applicant and Respondent appear to have had certain conversations. The Applicant contends that those conversations were about the nature of their relationship. That is the fundamental matter in respect of which the Court must decide under section 90RD. It is her word against his. There are only two witnesses in this case. It is an uneven contest with the Respondent represented by very experienced solicitor and counsel, and the Applicant representing herself.
The Court in Jasper & Corrigan made an important note regarding the weight to be given to the recorded evidence. The Court said: -
What needs to be made very clear to all parties in this case, and perhaps especially to the Applicant, is this: 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.
What is the risk?
If the Court do not accept there is probative value in a secret recording, the person who made the recording may be exposed to criminal liability. As noted above, there can be very serious penalties for secretly recording another person.
If you require legal advice regarding secret recordings, or any other family law matter, make an appointment with one of our solicitors by calling our office on (02) 6800 2660 or using our Online Service Portal.
Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.
