Settling a divorce or separation isn’t always smooth sailing. When things start to get messy or out of control, it can be tempting to consider covertly recording conversations as evidence of wrongdoing.
But while hiding your phone in your back pocket to secretly record exchanges with an ex-partner or spouse may sound like a great way to collect evidence to support your case against them, there are legal limitations as to whether they’ll be considered in court. So, when can and can’t you use secret recordings in Family Court cases? And when is a recording a secret recording?
Are you recording secretly?
Recording conversations has become easier than ever with advancements in technology. With the push of a button, you can even record your ongoing phone conversations if you desire. However, if you haven’t started your conversation with “I’m recording this conversation” then chances are, you’re engaging in a secret recording.
A secret recording of a conversation is any audio or visual recording where:
- The other person hasn’t specifically consented to being recorded
- There is no implied consent to being recorded
Implied consent includes things like having security cameras around your property but doesn't include things like making sure your ex-partner or spouse sees you putting your phone in your back pocket. Essentially, you’d need sufficient reason to believe that your ex-partner is aware they’re being recorded in order for implied consent to be assumed.
When can’t you use secretly recorded conversations in family court cases?
Often it‘s going to be challenging getting your secretly recorded conversations accepted in Family Court cases. This is because the courts have a lot to consider, including:
- Whether you made the recording yourself
- Why you made the recording
- Whether the recording breaches your ex-partner’s privacy under law
- Whether the recording is misleading or confusing
- Whether the recording is unfairly prejudicial or harmful to those recorded
There have been several cases where parents have secretly recorded their ex-partner or spouse by planting recording devices in their children’s belongings during their access. These overwhelmingly get rejected by the Family Court because they interfere with a children’s rights to have a private conversation with their parent without either party fearing of being recorded; in other words, they breach privacy laws. Every situation is different though, and there are some circumstances where secret recordings may be permissible.
So, when might secret recordings be acceptable?
There are some instances where not only is recording a conversation in secret understandable but is also permissible as evidence in Family Court cases. These are generally in situations where:
- There is a genuine fear for safety
- Property is at risk
- You are a primary participant in the conversation
The intent behind the recording is a key factor in whether the courts will allow it to be used as evidence.
For example, in cases where the secret recording was captured because there was a genuine fear for personal safety, and the recording was intended to be used as evidence to support a family violence claim, the courts are far more likely to consider accepting it than if you had no reason for recording other than ‘just in case’.
Accepting secret recordings as evidence in Family Court cases is considered on a case-by-case basis, and it’s best to discuss your situation with your family lawyer before you start recording.