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Can I record conversations with my ex?

7 October 2019

With the popularity of smart phones, it is now easier than ever to make audio or video recordings of conversations with other people, with or without their knowledge. It’s tempting to use this technology to record interactions with your ex-partner and to then use as evidence in your family law matter. But can you?And should you?

Section 138 of the Evidence Act 1995 (Cth) says that evidence which has been illegally or improperly obtained is not to be admitted into evidence.

So is it illegal or improper to make recordings of your ex-partner without their knowledge or consent?

The Law

Laws relating to the use of “listening devices” (including smart phones and similar devices) differ from State to State.  In Queensland, section 43 of the Invasion of Privacy Act 1971 says that it is an offence to use a listening device to overhear, record, monitor or listen to a “private conversation”.  A “private conversation” means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves.

However, it is not an offence to record a private conversation in Queensland if the person who makes the recording is a party to the conversation.  So, it is not illegal to record a conversation between yourself and your ex-partner, but it is illegal to record a conversation between your ex-partner and someone else, such as your children.

But beware – this exception does not apply in most other States, so it would still be illegal to record a conversation that you are a party to.  However, some other exceptions are available in other States such as the recording being necessary to protect a party’s lawful interests.

Even if the recordings have been illegally or improperly obtained, the Evidence Act says that they can still be admitted by the court if the desirability of admitting them outweighs the undesirability of admitting evidence obtained in such a manner.  The court will consider a number of factors including:

  • the importance and probative value of the evidence;
  • the nature of the proceedings;
  • the gravity of the impropriety or illegality in obtaining the evidence; and
  • the difficulty (if any) of obtaining the evidence without impropriety or illegality.

Cases where the court has allowed illegally obtained recordings, generally relate to allegations of domestic violence or other serious risks to the children or the recording party.

But another warning – even if the court allows the illegal recording into evidence in your case, it may still refer you to the Police for investigation of the offence.

A final consideration is how the court views a party who has made recordings of the other party, particularly if this is a regular practice.

The court is unlikely to be too critical of a parent who has made recordings which provide important evidence about serious issues such as domestic violence, which are very significant to determining the children’s best interests and about which it is otherwise very difficult to obtain evidence because it occurs in private.

However, the court is reluctant to encourage the use of technology by parties to regularly make recordings of their ex-partner for evidentiary purposes because it could contribute to a lack of trust between the parties, the unnecessary prolonging of disputes, and potentially erode the element of privacy necessary in any meaningful relationship between a parent and a child.

Recent Case

In a recent parenting case, the court was faced with a situation where, the mother made secret recordings of the father. The recordings were audio and video; and were made in South Australia. The court found that the video evidence be allowed, however the audio evidence be excluded.

The court considered the Evidence Act, however also had regard to the allegations of physical and controlling behaviour by the father, the arrangements in place at the time of the hearing, that the father was unaware of the recordings being made, and that the mother was not a party to the audio recordings – these being private conversations between the children and their father.

The court found it was not improper for the mother to make video recordings of the two changeovers. The court noted the mother had a legitimate interest in her personal safety and in preventing the children from being exposed to conflict. At the time the recordings were made, the mother gave evidence that she had ongoing difficulties with the father.

The court found it was in contravention of an Australian law (specifically, the Listening and Surveillance Devices Act 1972 (SA)) for the mother to make recordings of secret conversations. The court was not persuaded that it was sufficient for the mother to have believed that the father was attempting to alienate the children from her. The court refused to exercise its discretion to allow the audio recordings. The mother’s conduct in obtaining the recordings was considered “most improper” and “a serious invasion of the father’s privacy and the rights of the children”.

Summary

So approach recordings with caution – in some cases they can provide crucial evidence, but in many others they reflect more poorly on the person who made them than the party being recorded.

If you have any questions about this article, email us at [email protected] To make an appointment to discuss your personal circumstances, please phone us on (07) 3221 4300 or email at [email protected], or alternatively fill in our online form here.

2019-10-08T09:30:31+10:00

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