Amid a challenging marital dispute, it may be compelling to secretly hit “record” on your spouse. You may think that presenting such recordings may help your case. However, it is critical to understand the legal implications of using this type of evidence in family law proceedings. Typically, in New South Wales you will commit an offence if you record someone without their consent. As such, this article will discuss the framework around secret recordings and the circumstances where the court has permitted the use of such evidence.
SECRET RECORDINGS IN FAMILY LAW
The advancement of technology has now made recording conversations easily attainable. A “secret recording” refers to the recording of a conversation whether it be audio or visual, in which the other person has not been able to consent to being recording.
In NSW, under Subsection 7(1)(b) of the Surveillance Devices Act 2007, the use of a listening device to record a private conversation you are apart of is an offence, carrying consequential penalties such as hefty fines or up to 5 years imprisonment.
However, there are several exceptions stipulated regarding this legislation.
Section 7(3)(b)(i) of the SDA provides exceptions to the offence if:
(a) Exceptions to the Surveillance Devices Act:
- Both parties consent to the recording; or
- The principal party consents to a listening device be used, and the recording of the conversation is reasonably necessary for the protection of the lawful interests; or
- A private conversation is heard unintentionally by means of a listening device.
As such, the legislation emphasises exceptions to the law if it can be demonstrated that a secret recording is “reasonably necessary” for the protection of an individual’s “lawful interest”.
Correspondingly, Section 138 of the Evidence Act 1995 (NSW) suggests that illegally obtained evidence should not be permitted in court, unless it is more desirable that it is admitted.
WHERE THE LAW HAS ADMITTED SECRET RECORDINGS AS PART OF EVIDENCE
Under Section 69ZT(1) of the Family Law Act 1975 (Cth), large parts of the Federal Evidence Act 1995 do not apply in provision with child-related proceedings conducted in the family court. The Act also gives discretion to the court to accept any evidence it considers to be relevant to the case.
An example where the Family Court has permitted the use of secret recordings as evidence, however, can be identified in Rathswohl v Court [2020] NSWSC 1490. In this case, Justice Rees considered different aspects of the case to determine whether the recording of a conversation without consent was “reasonably necessary for the protection of the lawful interests” of the party making the recording, as well as the legitimacy of the recording and if the reasoning behind it was serious enough to admit it as evidence.
As a result, on 23 October 2020, Justice Rees determined that “the evidence here supports the existence of a serious dispute between the children as to the father’s will and care at the time the recording was mate” and was “satisfied that it was reasonably necessary for the protection of the lawful interests of Mrs Davies to make the recording”.
So while the Surveillance Devices Act does make secret recordings an offence, this case presents a circumstance in the Court exercised its discretion and such evidence has been permitted.
WHERE THE COURT HAS DENIED THE USE OF SECRET RECORDINGS
A case where the Court had to exercise its discretion to deny the admissibility of secret recordings as evidence is exemplified in Nagel v Clay [2020] FamCA 326.
In this case, the mother had exhibited over 8 hours of recordings where the father was unaware that he was recorded.
The Court found that a majority of the recordings were irrelevant to the issues in the case. Additionally, the relevant portions did not hold enough probative value to outweigh the danger that the evidence would unfairly prejudice the father and mislead the Court.
Therefore, it is clear that there is no main rule that the Court uses in determining which recordings will be admitted in evidence. Although it may be more open in exercising its discretion to admit such evidence in cases involving allegations of family violence.
WHAT ARE THE IMPACTS OF SECRETLY RECORDING YOUR SPOUSE?
As stated before, there are significant consequences under state law for recording private conversations without the consent of the other party including fines and imprisonment. Further, the Court may also refuse to admit evidence if it deems that its probative value is outweighed with the possibility that it will be unfairly prejudice to a party, misleading or irrelevant.
Consequently, if the Court does not accept probative value in a secret recording, attempting to admit the evidence carries risks to the individual who created it, such as exposure to criminal liability. It may also diminish your credibility and negatively impact your case.
The interrelation between state and federal privacy laws, and evidence admissibility in the Family Court is complex and circumstantial. It is important to carefully consider the risks on your case before making an illegal recording.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.
Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving substance abuse and criminal elements. We offer comprehensive legal support tailored to your specific situation. Whether you’re dealing with parenting disputes, family violence issues, or custody battles, we have the expertise to guide you.
We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.
Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving substance abuse issues.
If you’re facing family law challenges related to substance abuse or criminal law, don’t hesitate to contact Ramsden Family Law. Your family’s future is our top priority, and we’re here to provide the guidance and support you need.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
Posted in: Latest News
September 23 2024
