Recordings as Admissible Family Court Evidence

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While it may be tempting to record your spouse or estranged partner’s actions, conversations or behaviors for use in a divorce court proceeding, it is very important that you fully understand the implications and the legal ramifications of attempting to do so. Regardless of how significant you might believe the behavior of the other party involved, the Court can, and will, exclude such evidence if it is not legally procured or prejudices the other party.

Initially it is important to understand the law that governs the admissibility of recorded evidence. Regardless of whether the recording is audio only or audio and video, certain rules will apply. The Surveillance Devices Act 2007, section 7, governs the admissibility and use of recorded evidence in Family Court.

In general, the rule is that if a recording is made sans the knowledge of the other party involved, during the course of a conversation, which creates an expectation that only the parties to the conversation will be privy to its contents, it is not allowed into evidence for judicial consideration.

However, as with all laws there are exceptions to the rule that the Court can consider when presented with evidence that has not been obtained with the proper permission of one of the parties.  These exceptions can and will be considered by most family court Judges;

  • Knowledge and consent of both parties to the recording
  • If the recording is reasonably necessary to protect a lawful interest of the principal party
  • If the recording was made without the intent to publish it or report it to an outside party

The exception that can create the greatest area of legal disagreement is if the evidence is “reasonably necessary” to protect the interest of one of the parties. For example, if the evidence was illegally procured without the consent of the person recorded, but the actions of the person recorded evidence of harm occurring to a spouse or a child, the Court will most likely find it reasonably necessary to view and admit the evidence to protect the abused person.

If the situation is less serious, but the evidence is being offered by one party against the other, the court will look at several other factors before making a final decision. These factors include;

  • Does the evidence have a strong probative value; hence will it prove a fact that is pertinent to the Court’s ability to decide in the best interest of the family or a child, specifically.
  • Is the evidence important; hence will its admission be significant enough to alter the outcome of the decision
  • What is the nature of the offense that has been captured via audio or video; for example, it a parent is having an argument with the neighbor, the court might not find that particularly relevant to the dynamics within the family, itself
  • Was the gravity of the incident or statements recorded; meaning the court will look to the general seriousness of the party’s actions/statements.
  • The intention of the recorded act or statement; for example, did the action appear to be deliberate and/or reckless in nature
  • Were another person’s rights violated as a result of the action or words recorded
  • Does the recording lend itself to any other action that could be taken against the person recorded; for example, was the person recorded physically harming someone in a manner that could be construed as criminal
  • How difficult would it have been for the person who recorded the actions/words to have done so within the confines of the law

Even after considering all of these factors, the Court will take one final step in assessing if the evidence should be admitted by looking at these last three factors;

  1. Is the evidence so important that it outweighs any prejudice it might create against the party recorded?
  2. Is the evidence misleading or confusing to those who will be required to interpret it? For example, is only a piece of the event recorded, thereby excluding the antecedent event or the final conclusion of the moment recorded.
  3. Would admission of the evidence cost the Court to waste time on an insubstantial issue?

All of these relevant factors and considerations must be reviewed by the Court prior to allowing illegally recorded evidence into the proceedings. While the recording may contain evidence that you feel is relevant to deciding the outcome of a family law case, the action of attempting to admit an illegally obtained recording for probative value, is risky. Therefore, if you are in a situation that involves behaviors that are dangerous, violent and/or abusive, it is best to report these incidents to the family court directly, to a social worker, to law enforcement or to your solicitor so that the necessary evidence to support your position and protect your safety, is gathered in a manner that is both useful and legal.

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

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