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The Law And You: Mobile phone recordings and family law

Watts McCray Lawyers

What you need to know.

Gone are the days when telephones were large hand-held devices used to make that simple little phone call. Today, more than 16 million Australians have a smartphone—mini super computers. We take them everywhere and use them all the time. They document and record our daily lives.

With such a powerful device at our fingertips, it’s no surprise that audio and video recordings are being more commonly used in Family Law as proof of disputed facts. A simple little phone call can take on new meaning.

This column looks at whether audio and video recordings are admissible in Family Law or in domestic violence proceedings in Court.

Are recorded conversations or videos allowed in courtrooms?

Yes they can be. The Chief Justice of the Family Court of Australia, Her Honour Chief Justice Bryant, recently said they are ‘quite common and widespread’. She told the ABC that ‘from the look of the judgments in the vast majority of cases, such evidence is admitted’.

What are the rules around admitting this sort of evidence in Court?

In the ACT, it’s illegal to secretly record a conversation without the other person’s consent. When both parties consent, then recorded conversations can be admitted into evidence in the right circumstances.

What about screenshots and text messages, including from Facebook?

More and more often, clients are using screenshots from Facebook or copies of text messages as evidence in Court proceedings. Some use their phones to record their former partners to protect themselves and/or discourage their partner from behaving in an inappropriate or abusive way towards them. You can’t do this in secret, however. If the other party doesn’t consent to the recording, then it might not be able to be used in Court.

Is it automatic that my recording will be admitted as evidence?

No it’s not. Don’t assume that a recording will automatically be admitted into evidence in Family Court. It’s best to get advice about your rights in this area, including the correct way to record matters in a fair way. This will help protect you and enhance your chances of having this evidence used by your lawyer in Court.

What does the Family Court consider when deciding if an audio or video recording can be used?

The Judge can admit recordings as evidence, if:

  1. the evidence is important, probative and relevant
  2. it’s more desirable than not to admit the evidence.

When weighing this up, the Court also considers factors such as how the evidence was obtained and the prejudicial nature of admitting it. The Family Court must also consider what is best for the children, and the need to protect children from harm or abuse. The Court must do this under the provisions set out in Family Law Act 1975 (Cwlth).

Can using audio and video recordings backfire on me?

Yes, so exercise caution. The Judge may criticise you for recording without the other party’s consent. It will depend on the circumstances of the case. In a recent Family Court case—Janssen (2016)—the wife secretly obtained recordings. The Judge in that case discussed other cases where other Judges had observed that it is very difficult to obtain evidence of family violence that takes place behind closed doors. The Judge noted that this was particularly so where there are “allegations that the Father has maintained a charming public face but has engaged in conduct within the family home that is alleged to have constituted family violence.”

Chief Justice Bryant observed in the radio interview that: “There are plenty of protections under the [Family Law] Act for not admitting the evidence if it is not going to be fair, and there are plenty of opportunities to admit it if it is going to have probative value and be fairly admitted.”

What can I do to better understand whether it’s worth using an audio or video recording in Family Court?

It’s best to seek specialist family law advice through a specialist legal practitioner with years of experience, such as through the lawyers who work at Watts McCray.

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This expert column was prepared by Debra Parker, Partner, Watts McCray Lawyers Canberra.

This is a sponsored editorial. For more information on sponsored editorials, click here

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Watts McCray Lawyers

Watts McCray is a leading firm of family and relationship lawyers. We have the largest number of accredited family law specialists in Australia and are backed by years of experience. Our lawyers have the skills to provide you with sound, practical advice about issues such as relationship changes and separation, property and financial matters, parenting arrangements after separation, child support and divorce. Watts McCray can also provide you with legal help if you want to resolve matters without having to go through Court. We can help with negotiation, mediation, collaboration and arbitration services as well as the traditional Court litigation process. We can also help with your estate planning and wills. Call us on
(02) 6257 6347 for more information and for tailored services to meet your specific legal needs.

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