Approximately 3% of families embark on litigated family law proceedings. These families are often embroiled in intractable conflict, they are unable to work out parenting and property by themselves as their relationships are volatile and accusatory.
These families require the courts intervention and they are usually very troubled, with an alleged history of violence, safety concerns for children and parent/s, mental health issues, substance abuse, problematic social media or pornography use, which the child/ren may be exposed to. Its often difficult to obtain evidence that will assist our clients case, particularly when allegations of family violence are made. Can a spouse record conversations and then have that useful evidence admitted at final hearing?
In the recent case of Janssen & Janssen  FamCA 345 this issue arose;
Counsel for the Applicant mother, on the first day of a four day hearing, indicated that the applicant mother would seek to tender voice recordings and transcripts of exchanges between the parties that occurred in the period from 1 April 2013 until 24 August 2013.
The recordings and transcript were only provided to the other parties legal reps less than a week prior to the commencement of the hearing. This did not comply with the pre-trial directions for the filing of evidence. An Affidavit was filed by the mother setting out the context of the recordings.
Section 7 of the Surveillance Devices Act 2007 (NSW) (“SDA“) makes it unlawful to record private conversations without the consent of the other person unless it comes within one of the exceptions in subsections (2) & (3) of section 7 SDA. So what are some useful tips that arise from this case:
- Section 7(3)(b) SDA provides that the prohibition to the use of listening devices to record a private conversation does not apply for reasons that include that it “is reasonably necessary for the protection of the lawful interests of that principal party,”
- In the case of Corby & Corby  FCCA 1099, Judge Sexton applied the decision of the Court of Criminal Appeal in DW v R  NSWCCA 28, to find on the facts before her:
23. …that the Mother had the right to protect her interest not to be intimidated or harassed, …..
- In Huffman & Gorman (No. 2)  FamCA 1077, the Court considered whether to exercise jurisdiction under section 138 of the Evidence Act 1995 (Cth) (“the Evidence Act”), to admit a recording into evidence despite the possibility of it being found that it was illegally obtained. In deciding that it should be admitted on the facts before her, Hannam J noted that:
It is notoriously difficult to obtain evidence of family violence which takes place behind closed doors.
- Submissions opposing admission were made by the Respondent fathers SC, that the ‘floodgates’ would open up to parties to obtain secret recordings if these tapes were admitted. McClellan J stated the decision to admit was based upon these particular facts, where the father had maintained a charming public face but had engaged in conduct within the family home that is alleged to have constituted family violence in terms of the provisions of section 4AB of the Family Law Act 1975 (Cth) (“the FLA”)
- McClellan J had regard to the potential difficulty of obtaining evidence of alleged family violence when it occurs behind closed doors without any witnesses being present other than the alleged perpetrator and victim.
- The court will have regard to section 69ZN the FLA, which provides that in exercising jurisdiction under this part of the Act dealing with children, the Court must have regard to the principles for conducting child related proceedings, and those principles include, that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and neglect as well as safeguard the parties to the proceedings against family violence.
- The ICL’s Counsel submitted the recordings may also assist in determining whether the parenting abilities of the primary carer have been compromised as a result of the content and tone of the communication.
- The Court can take into account the provisions of section 69ZT(1) & (2) the FLA, which gives the Court a discretion to give such weight, if any, as it thinks fit, to evidence admitted as a consequence of the provisions of the Evidence Act not applying.
It is highly recommended that a consideration of the exceptions found in section 7 (2) & (3) SDA are undertaken, when faced with a case where there are allegations of family violence (or other salient issues), as the difficulties of obtaining evidence, behind closed doors, is recognised by the Court.
S 69ZN FLA requires consideration, as the Court MUST have regard to these principles when conducting child related proceedings; to safeguard children (and parties) against family violence, child abuse and neglect.
Having knowledge of and applying the provisions of the Evidence Act in family law proceedings is valuable and required, including section 138 of the Evidence Act, in this type of case.
If you require the services of a technical and practical family law barrister and mediator, contact Louise on (02) 9336 5399 or firstname.lastname@example.org
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