Using Audio and Video as Evidence in Family Court - Is it allowed?

With the advancement of technology this day and age, it is a lot easier to take video and audio recordings secretly. But what happens if you secretly record your partner being abusive to you or record a conversation that you think will benefit your case? Can you use these recordings as evidence in your family law proceedings?

It is important to understand that State and Commonwealth legislation govern evidence that may be admissible in a court of law. Each State have their own legislation, for example; Surveillance Devices Act 2007 (NSW).

Under Section 138 of the Evidence Act 1995 (the Commonwealth Act), the Court has the discretion to exclude evidence which may have been improperly obtained. However, for the court to decide whether evidence should be admitted, it will consider a range of factors including, but not limited to, the nature and importance of the evidence.

With regards to the Family Law Act 1975, the rules of evidence do not apply to child related proceeding unless the court decides otherwise.

Even though there are rules governing the admissibility of evidence, the Courts may use their discretion on a case to case basis.

In Simmons & Simmons [2013] FCCA 304, the mother planted a recording device on her children before they went to see their father. The Court allowed this evidence to be admitted, however, both parents were criticized by the Judge, saying their behaviour was “insightful and selfish”.

In Huffman & Gorman (No.2) [2014] FamCA, the father sought admission of a recorded conversation between himself and the mother in circumstances where the recording was made without the mother’s knowledge or consent. The Court held that while the evidence was unlawfully obtained, the evidence was admitted under section 138 of the Evidence Act.

Putting the Recorded Evidence before the Court

Putting evidence before the Court will depend on the type of evidence, type of hearing and the attitude of the particular judicial officer overseeing the case.

In some cases video and audio recordings may be admitted, however caution should be taken before evidence is obtained or considered to be used in proceedings as the importance and value you place on the recorded evidence might be fairly different to that of your lawyer.

It is important to understand the risks and benefits associated with using such evidence. If you require assistance with your family law matter please book a consultation with our experienced Family Law Solicitor.

If you would like more information on family law please visit our website.