To Record or Not to Record – Stance in Family Law

Author:
Nakil Navinesh Prasad
Nakil Navinesh Prasad
stance in Family Law

It is more often the case that parties may have, at some stage recorded conversations involving the other party and/or their children, in an attempt to rely upon it, in support of their evidence in court. However, little do they know what ramifications, if any, their actions may have on their credibility, lack of insight, and conduct as a parent in the eye of the court, neither do they know whether they are able to rely upon the recording in court nor whether their actions are legal. 

Section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW), allows recording of a private conversation if such recording is reasonably necessary for the protection of the lawful interests of that party. 

Section 138 of the Evidence Act 1995 allows a court to admit into evidence something that was improperly or illegally obtained if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been improperly or illegally obtained. 

Rees J in Rathswohl v Court [2020] NSWSC 1490 held at [35]:

The following considerations may indicate whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording:

  1. Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose.
  2. Whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation. This is more likely to be the case where the conversation concerns a serious criminal matter or the principal party has a genuine concern for their safety or that of their children.
  3. Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note.
  4. Whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence and thus, one person’s word against another. Recordings of conversations ‘just in case’ there is a dispute, or for the sake of making an accurate record of what was said, is not enough.

In reaching the above considerations, Rees J referred at [20] – [22] to the following family law cases:

In Latham v Latham [2008] FamCA 877, a father made secret recordings of his wife and children, including abusive comments which suggested that the wife was a child abuser. Trench J accepted that the recordings were reasonably necessary to protect the father’s lawful interests, including the likelihood that the wife would deny the conversations; that the husband needed to protect himself from risk of the accusation that he had fabricated the conversations; and, to avoid being labelled a liar. The husband was entitled to be present where the recordings were made, was entitled to participate in the conversations and repeat the conversations. Further, Trench J was otherwise prepared to admit the evidence under section 138 of the Evidence Act 1995.

In Groom v Police (2015) 252 A Crim R 332[2015] SASC 101, Mr Groom was recorded by his former partner during handover of access to their child. The former partner had made many allegations that Mr Groom was breaching an intervention order but had encountered problems proving the allegations and none proceeded to a conviction. The former partner said she held genuine concerns for her wellbeing. Nicholson J concluded, on appeal, that the recording was admissible. Nicholson J considered that, whilst breach of an intervention order was a relatively minor crime and there was no suggestion of physical violence, breach of such an order was still serious. A court should more readily accept that a recording was carried out in pursuance of a person’s lawful interest in circumstances where that person had a genuine concern for their own safety: at [40].

In Gawley & Bass [2016] FCCA 1955, a father installed a listening device in the mother’s home for some three weeks. The father recorded the mother with their children in an attempt to corroborate his assertions about the violence and parenting capacity of the mother, should this ever be questioned by an authority. The father made a report to Child Protection Services about the mother’s violent temper and mistreatment of the children, expressing a concern that the mother had assaulted one of the children. He arranged a meeting to discuss these concerns. Judge Baker concluded that the lawful interest of the father, as a parent of the children, was to protect the children from the risk of harm and concluded that it was reasonably appropriate for the father to record the conversation: at [52]-[55].

Rees J in Essa & Salter [2021] FamCa 22 was critical of the father’s video recording and held at 157 & 158:

There was additional evidence which causes me concern as to the father’s capacity to promote a positive relationship with his mother if B was to live with him. The father provided in evidence a video of he and B where he is questioning his son concerning whether his “mummy had told him to say something bad.” The father produced this video to prove that the mother had been coaching the child. 

The father said “The forensic purpose of producing that material is to directly address the issues that I had been concerned about for a very long time,” however what the video also demonstrates is the father pressing and pushing his young son to make a negative comment about his mother to prove his case. This was unnecessary pressure on his young son as all the father needed to do was rely upon Dr G’s report and her observations in reporting the child’s comments to her.

In the above case, the fathers’ recordings supported the mothers’ case in that it showed to the court the fathers controlling nature and the lack of insight on his part as to the negative impact his behaviour was having on the child. His Honour stated, unfortunately the father, by exacerbating the mothers’ fragility which I accept she has and inflaming her temper, is the parent who has exposed his son to risk as he continued to film her and expose his son to this unacceptable behaviour when he could have defused the situation…it could well be that he knew the mother would react in this way, hence his filming of her, and his son was but collateral damage.  

If you have concerns about recordings, it’s legality and admissibility in family law proceedings, then please feel free to contact Longton Legal for an obligation free discussion. 

Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to change. You should seek independent legal advice before embarking upon any course of action.

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Nakil Navinesh Prasad
Senior Associate

Contact

0405 573 888
Level 4, 87 Marsden Street, Parramatta NSW 2150

Areas of Expertise

Family Law
Wills and Estates

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