In Family Law proceedings, in arguing a case before the Family Court, you may want proof of an event (or events) that supports your case—incidents of violence by a partner, for example. You may lack proof to back up your case—many events take place behind closed doors, when no one else is present.  How do you prove what happened?

What about a video or a sound recording that corroborates your allegations? Can a recording of conversations, or a video of the acts of the other party, be used as evidence in Family Law proceedings?

Generally speaking, no. Our society treasures and protects the right of privacy. Under the Surveillance Devices Act 2007 (NSW) it is a serious offence to install or use a listening device, optical surveillance device, tracking device or data surveillance device, with the intent of recording private conversations, or observing, tracking or spying on a person. The exception is where the recording is done with the consent of the other party, or by law enforcement agencies. The maximum penalty is five years imprisonment. Any evidence obtained by such covert means is considered illegal and generally not allowed or taken into account in any court proceedings.

However, there is an exception to this when it comes to Family Law.

In a recent case before the Family Court, a mother tried to submit voice recordings and a transcript of conversations between her and the father of their children, recordings made without his knowledge. She alleged serious family violence on his part. The judge was prepared to admit this as evidence. He noted an exception in the Surveillance Devices Act 2007, where such evidence is ‘reasonably necessary for the protection of the lawful interests of a party.’ In this case, the judge accepted that the father had a ‘charming public face but engaged in serious destructive family violence in the home.’ The judge noted that it can be notoriously difficult to obtain evidence of family violence which takes place behind closed doors. The judge found the father had engaged in violence of a coercive and controlling nature in the home, which had terrified the wife. He then restricted the father’s time with the children and required time spent with the children to be independently supervised.

So, generally is not a good idea secretly to record another person’s conversations or actions.  It is a criminal offence and the courts won’t generally condone it or allow the evidence to be used in court. But in some cases the courts may consider any evidence that shows the true situation. And if violence is proved, the courts will take strong protective action.

Generally though, it is much better to use other means to build your case, and to discuss the situation with a family lawyer before embarking on radical measures.

*Andrew Corish is an Accredited Specialist in Family Law with Corish & Co Specialist Family Lawyers North Sydney