Whether a secret recording of a conversation can be used as evidence in a family law case depends on the nature and content of the recording.
In some cases, disputes in a family law case involve “he said/she said” disagreements. “He told me he’s getting paid in cash for extra work” or “She threatened to take the children to her home country” are the kind of statements that are often denied in court by the people who made them.
One way to prove the statement was made is to record it. With video and audio recording capability built into many smartphones, it is easy to record people without their knowledge. Home security systems also make it possible to record people who don’t realize they are on camera.
Can those secret recordings be used as evidence in court? The answer depends on the circumstances.
When a current or former spouse is being recorded with his or her knowledge and consent, the recording can usually be used as evidence if the party denies making a statement that appears on the recording. The question is more complicated if the recording was made without the other party’s consent.
It may be a violation of the law to record and then play a conversation without the knowledge or consent of all parties to the conversation. In Victoria, for example, the Surveillance Device Act 1999 prohibits the disclosure of certain private conversations that were made without the consent of a party to the conversation.
The Surveillance Device Act only applies to private conversations. Not all conversations are private. In addition, the Act contains limited exceptions that permit disclosure to protect the legal interests of the person who made the recording. Whether a recording is legal or unlawful can, therefore, be a difficult question to answer.
If the recording was not made legally, a Family Law Court has the discretion to consider the recording as evidence or to exclude it. The court essentially weighs the importance of the evidence to a just decision against the undesirability of relying on illegally obtained evidence.
The court will consider whether the recorded evidence proves something of importance to the dispute that the court is deciding. If the recorded statements are ambiguous or only slightly related to the disputed issue, the court might disallow the evidence. On the other hand, if the recorded statements clearly establish an important fact, the court will be more inclined to consider the recording.
The court will also consider how serious the conduct was that resulted in the recording. If the recording was inadvertent (if it was captured on recordings made by a baby monitor, for example), the court will be more inclined to admit the recording as evidence than if the party who made the recording deliberately violated the law.