Protect yourself online. Learn more.

We're here to help

8227 1970

Secret Recordings in Parenting Matters

Secret Recordings in Parenting Matters

The Commonwealth Evidence Act provides that illegally obtained secret recordings are not admissible in Family Law cases unless the benefit of the evidence outweighs the undesirability of admitting illegally obtained evidence.

In South Australia the Surveillance Devices Act 2016 regulates the recording of private conversations and the use of those recordings. The Act prohibits using a listening device to record a private conversation without the consent of all parties.

In Family Law proceedings, the Court has a discretion to admit illegally obtained evidence, such as illegally obtained recordings, if probative value of the evidence and the importance of the evidence outweigh the undesirability of allowing illegally obtained evidence to be used.

In Shelbourne & Shelbourne [2017] FamCa 761 a single judge of the Family Court of Australia allowed video recordings taken by the father, which depicted the mother engaging in acts of family violence, to be admitted in evidence. The Court found that the videos had been taken to protect the father’s interest in circumstances where the mother had made allegations of family violence against the father and the recordings assisted to dispel the mother’s allegations.

In Nagel & Clay [2020] FamCa 326 a single judge of the Family Court of Australia excluded recordings made by the mother, finding the prejudicial nature of the recordings outweighed their probative value.

The Court has held that it will be slow to encourage parties to use illegally obtained evidence in an age where electronic devices present opportunity to covertly make audio and video recordings and that it is necessary that the Court recognise the operation of State Law making it illegal to covertly record private conversation.

Call us now on 8227 1970 to find out how one of our solicitors can assist you with your family law matter.

Family law, divorce, wills and estate specialist family lawyers for Adelaide and South Australia.

Liability limited by a scheme approved under professional standards legislation.

Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Family Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.