In the “he said, she said” world of family law, making a recording of the other party (usually conducted surreptitiously) is in the author’s experience often regarded by litigants as best evidence to establish a particular version of events.
Sometimes this is true.
Before deciding to record however it is prudent to consider the legality of the recording, whether the recording may be admitted as evidence, how the recording may be perceived by the judicial officer hearing the matter, and what of the obligation to disclose the recording if it doesn’t achieve what the person behind the recording device was hoping it would.
The issue of the legality of the recording and its admissibility usually goes hand in hand; and there are both State and Commonwealth statutes relevant to the issue.
In Queensland it is lawful to record a conversation without the knowledge of other parties provided the person making the recording is a party to the conversation. Therefore A can record a conversation between A, B and C but cannot record the private conversation between B and C when A is not a party to the private conversation.
Commonwealth legislation applies to the interception of telephone calls, commonly called “wire tapping” back when telephones needed to have wires.
With improvements in technology (such as the iphone) and new applications (“apps”); recordings often encountered in the family law arena are conversations between parties over the telephone, utilising technology built into the phone or device.
The Commonwealth Telecommunications (Interception and Access) Act 1979 makes it an offence to “intercept” a communication passing over a telecommunication system. Before devices had in built recording functions, in the author’s opinion, the safest way to record a telephone conversation was to have the conversation on speaker, and record the conversation on a separate recording device. Thus the communication had been received, was not intercepted, and was not passing over the telecommunications system.
But what of modern devices with inbuilt recording functions? When does an “intercept” take place? Is the communication passing over the system, and can recording made this way offend the Telecommunications (Interception and Access) Act?
An interception passing over a telecommunications system is defined as:
“Listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.”
Having regard to the above, the relevant question would seem to be: when is the communication “passing over that telecommunications system”?
For the purposes of the act:
“a telecommunications is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.”
Thus it would seem with modern devices such as an iphone with built in recording capability, the communication would be “accessible” at the time of recording, and therefore not “passing over” or intercepted.
In the event that the recording was unlawfully obtained, can it still be relied upon?
Leaving aside specific provisions of the Commonwealth and Queensland legislation in relation to admissibility of illegally obtained recordings, the Commonwealth Evidence Act section 138 provides illegally or improperly obtained evidence may be excluded.
A recent decision where recorded evidence was not admitted is “Badger & Ors  FMCAfam 124 (14 February 2013). In this case a police officer litigation guardian made an admission that he had “tapped” a phone without the knowledge of the other party to the call. The police officer was a party to the conversation and it is not clear from the judgment what “tapping” the phone meant in this context. It should also be noted throughout the judgment reference is made to the Telecommunications Act 1997 which it would seem is not the relevant act.
Having found that the recording was illegal, His Honour said:
“The statutory provisions relating to the admission of improperly or illegally obtained evidence is found at section 138 of the Evidence Act 1995. That section makes it clear that such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting such evidence. Without prescriptive limitation the court is required to take into account eight separate matters. Those matters are explored below.
The court must consider the probative value of the evidence. That is, is the evidence sufficiently useful to prove something important in the case. The court must also consider the importance of the evidence in the proceedings and the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceedings.”
It is also important to note that section 138 Evidence Act (Cth) 1995, prima facie, applies to child related proceedings, and is not excluded by section 69ZT Family Law Act 1975 as are several other evidentiary provisions.
What if the recordings are admissible? Will they help or hinder?
It depends on what they reveal.
The court is savvy to the fact that he or she who records is on their best behaviour; while the other party is unguarded. Litigants can expect the weight to be attributed to the recording shall reflect this idea.
At their highest, if the recording catches the other party making a false deposition they may be a very important piece of evidence.
At their lowest, recordings may indicate a propensity on the part of one of the litigants to attempt to try and trap the other party, or engage in conflict causing, litigious conduct in an attempt to provoke the other party to perform on tape.
Bearing in mind that recordings are likely to occur in the context of a parenting matter; the likelihood surreptitious recordings leading to increased conflict, social science research supporting that conflict between parent’s causes emotional harm to children, and the perception of lack of insight or regard for children by recording, the risks are obvious.
In the decision of Simmons & Simmons  FCCA 304 (24 May 2013) a mother planted the recording device on the children before sending the child off to spend supervised time with the father. The recorded evidence was admitted however both parties were criticised. Judge McGuire said at paragraph 109:
On the material before me and, in particular, the tape recordings, I am satisfied on the balance of probabilities that the father did act in this way. This is insightful and selfish behaviour. It fails to recognise the potential effect on a young child of being embroiled in such a way in parental dispute. Similarly, however, the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour. The actions of both these parents are at best naïve and at worst a form of child abuse. In this sense they are equally culpable.
What if the recording is harmful to the case of the person recording?
Section 3 Evidence Act 1995 also refers to Acts Interpretation Act 1901 for definitions of terms including “document”. A document includes “any record of information, and includes anything from which sounds, images or writings can be reproduced”. i.e. recordings.
Both the Family Law Rules 2004 and the Federal Circuit Court Rules 2001 provide for general obligations to make disclosure, including relevant documents. Thus even if the recording is harmful to the case of the person recording it must be disclosed which creates yet another element of risk prior to making a decision to record.
For the solicitors acting for the person making the recording, the solicitor cannot accept instructions not to disclose relevant evidence. If the client decided the recording was not helpful (or was harmful to their case) the solicitor acting for them would be required to cease acting if the client refused to make disclosure.
Before considering secretly recording, obtain advice from a family lawyer.
 Invasion of Privacy Act (Qld) 1971 section 43(2)(a)
 Invasion of Privacy Act (Qld) 1971 section 4 at “private conversation is defined as “any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.
 Telecommunications (Interception and Access) Act 1979 section 7
 Telecommunications (Interception and Access) Act 1979 section 6
 Telecommunications (Interception and Access) Act 1979 section 5F
 Telecommunications (Interception and Access) Act 1979 part 3.4 division 3 and section 46 Invasion of Privacy Act (Qld) 1971
 Acts Interpretation Act 1901section 2B
 A solicitor has a fundamental duty to the court and administration of justice (Rules 3 of the Australian Solicitor Conduct Rules 2012).