Can video or audio recordings be used in the Family Court?

Damien Carrick: Hi, Damien Carrick with you, welcome to the final of the Summer season of the Law Report. Back in the 19th century, Tolstoy wrote, 'All happy families are the same, but all unhappy families are different.' Well, in the 21st century you don't need to read a Russian novel to get to grips with what goes on behind closed doors. Smart phones and other recording devices are lifting the lid on our dysfunctional dynamics. Judges and lawyers say it is now common practice for parties in family law litigation to try to admit audio and video evidence to support their arguments.

Lawyer: I would say 25% or 30%, as high as that, if not more, or they're showing me a screenshot from Facebook or from a Twitter account or something and they are saying 'can we use this', or they are asking whether or not they should go down that path and start recording or screenshotting or taking that path generally.

Helen Campbell: The parent secretly put a recording device in a child's toy, just for the purpose of recording what was being said at the time of handover.

Dave: It is very, very much of a legal minefield, I can understand that someone could claim that they were antagonised, intimidated. However, we also see that if someone isn't aware that they are being recorded than usually their natural behaviours come out.

Kate: I had had interactions with the police, like phone calls and visits from the police from time to time when a false allegation had been made, and each time I was able to say, 'I have that incident audio recorded, so if you want to pursue anything further, just let me know and I'll give you the data file.'

Damien Carrick: So what are the rules around admitting secretly recorded video and audio as evidence into family court trials? Well, each state and territory has its own laws. In many Australian jurisdictions it's illegal to surreptitiously record a conversation. In others, secret recordings can be made but it's illegal to publish or communicate those conversations.

But in all jurisdictions there are exceptions if the recording is reasonably necessary to protect someone's lawful interests. And if you come within that exception, you can admit otherwise inadmissible evidence if it is probative and relevant.

Diana Bryant is the Chief Justice of the Family Court of Australia. She says that despite the legal hurdles, secretly recorded video and audio is making its way into the Family Court.

Diana Bryant: Well actually it's quite common, Damien, and I interestingly contrast it when I first started doing family law 40 years ago, where recording was fairly unusual. You had to have a proper recorder to do it and it was a bit clunky and not many people were able to do it easily, but of course these days with smart phones and the like it's so much easier to record and even to video things.

Damien Carrick: So would you say it's becoming widespread?

Diana Bryant: Yes, I think it is quite widespread. In many cases there will be people who would be wanting to introduce that kind of evidence.

Damien Carrick: Do you have a sense of in what percentage of cases where this evidence is attempted to be introduced that the court gives a tick and allows it to be admitted?

Diana Bryant: From a look at the judgements, in the vast majority of cases it is admitted.

Damien Carrick: There was a case, Janssen & Janssen, where there were allegations of domestic violence, and she was successful in having the audio evidence at admitted in court. And the judge in that case discussed other cases where judges acknowledged it was notoriously difficult to obtain evidence of family violence which takes place behind closed doors, and cases where the husband maintained a very charming public face but had engaged in conduct within the family home that is alleged to have constituted family violence, as evidenced in these conversations. Are they the kinds of examples that you see…?

Diana Bryant: They are the kinds of examples, yes. And looking at why you might not admit it, again it seems to me if I compare what the situation was 30 or 40 years ago to now, it's just so much easier to record ordinary interactions now with a smart phone. So you do tend I think to get more valuable information out of ordinary discussions. With a recorder, you had to set it up more, and it was more likely that it wouldn't be necessarily a fair recording if someone was setting up the other party with questions. So that may be one of the reasons that it's more reliable these days and has more probative value.

Damien Carrick: And time and date stamps, there's more integrity to the evidence.

Diana Bryant: Yes, there's more integrity to the recordings.

Damien Carrick: Interesting, in that case the judge, Justice McClellan, also said, 'I have noted that there is a danger of the floodgates opening with parties to a marital relationship that are experiencing difficulties determining that it's appropriate to surreptitiously obtain tape recordings.' That idea that everybody will go out there and start recording conversations. Is that, as you see it, a possible bad here?

Diana Bryant: Look, I think it's probably happening anyway. Whether or not it's just in legal proceedings, the whole of our society uses smart phones for all sorts of things. So I think there's an inevitability to it, just because of the technology. But there are plenty of protections under the act for not admitting the evidence if it is not going to be fair, and there are plenty of opportunities to admit it if it is going to have probative value and be fairly admitted.

Damien Carrick: There have also been cases where children are involved, it's not just an interaction between a husband and a wife, where recordings are made of children or children are somehow brought into the process of recording. Does that raise particular issues?

Diana Bryant: That does, that's a lot more problematic because I think it's fairly well accepted that interviewing children, particularly where you'd got facts in issue that you want to have someone with expertise in interviewing children. For example, you don't want someone asking leading questions, you don't want someone encouraging them to give a particular answer. And of course if you've got a parent who is involved in the process themselves and not objective, and who doesn't have that training, then you are likely to get material which isn't particularly helpful.

Damien Carrick: I have been told about cases where…and I've been reading some cases where they say the judge admits the evidence and says, 'Look, this doesn't reflect well on you,' but it is probative evidence. And so, if you like, both sides go down in the estimation of the court. And so it's a very, very fine line about whether or not this is probative and useful and goes to the heart of the matter.

Diana Bryant: It is, but that's not much different from all kinds of evidence, and what it means is you do have to look at it very carefully on a case-by-case basis how relevant it is to the case, how valuable it is, how probative it is, how fair it is, all those things are relevant. In some cases it will be useful and in other cases it won't be so useful.

Damien Carrick: More from Chief Justice Diana Bryant a little later.

Lawyer Helen Campbell is the executive officer with the New South Wales Women's Legal Service. She agrees that when kids are involved, it becomes much more complicated.

Helen Campbell: That's right, that's the overwhelming responsibility of the court, is to consider the best interests of the child. So in high conflict separation disputes, there will often be acrimony where the child is being taken from one parent's care to the other. And sometimes parents attempting to demonstrate either that this is an acrimonious event or that it's not, may covertly make recordings of what was said and done at that time. And the court generally takes a pretty dim view of that.

Damien Carrick: Why?

Helen Campbell: The court tends to believe that that has been involving the child in a manipulative situation and is using the child for the furtherance of a dispute between the parents, which in some cases the judge has said that this lacks insight, and has even gone so far as to say it's nearly child abuse, to use the child to perpetrate your arguments for you in that way.

Damien Carrick: That's where one parent will record the child making allegations about the other?

Helen Campbell: Look, that's one of the cases where the judges have commented. The other one was where the parent secretly put a recording device in a child's toy, just for the purpose of recording what was being said at the time of handover. And that was also criticised by the court.

Damien Carrick: And that was held to be not admissible?

Helen Campbell: In that particular case I believe that the evidence was admitted, but it was considered negatively against the person who made the recording as well as the person who was recorded. But the judge thought both parties were equally not good.

Damien Carrick: So in that case, with the listening device in the toy, the judge may well have been interested in what was recorded because that was important evidence, but also didn't think highly of the parent who had thought of the strategy to obtain the probative evidence?

Helen Campbell: Yes, and it was often thought also that it would be manipulated, so the parent making the recording would know that they were going to be recorded, so they could put on their extra-special nice-as-pie voice, whereas the other parent who didn't know they were being recorded might have been therefore goaded into being uncharacteristically aggressive in behaviour. So from that point of view the court didn't even think that the recording was definitive evidence.

Damien Carrick: There was I think a case, Huffman and Gorman, where the judge allowed the father to rely on recorded conversations, despite those being obtained illegally. In other words, the mum didn't realise that her conversation with the husband was being recorded. I think he used a dictaphone hidden under his clothing to record a conversation in which the mum threatens to harm the children. But I understand that in that case the judge said, look, yes, awful, yes, recorded illegally but we need to balance the seriousness of the husband's illegal actions with the best interests of the child and this evidence is important.

Helen Campbell: Yes, that's right. So the factors the court will consider include what is called the probative value of the evidence. So, as you said, how important that is and how much it tends to prove, the point at issue, and the gravity of the impropriety and whether it was deliberate or reckless. So that will come down to looking at the circumstances in which the recording was made.

Damien Carrick: Tell me, do many of your clients walk through your doors and say, 'I'm in a family law dispute, should I make these kinds of recordings because I think they will contain important information which needs to be put before a court?'

Helen Campbell: I don't know that we've had clients come and ask us before they've made the recording. We certainly have had clients who do have recordings, and we've considered whether we might be able to use those recordings, mostly in proceedings where the child is reluctant to go to the other parent, and we have audio of the child begging not to go and crying and being distressed.

Damien Carrick: And has that evidence been admitted?

Helen Campbell: I'm not able to discuss a current case I'm afraid.

Damien Carrick: So far we've been talking about Family Court proceedings, but of course I'm assuming you would also act for women who are facing domestic violence issues and have domestic violence proceedings afoot separate from maybe concurrent family law proceedings. Can this sort of evidence be used to obtain, say, an intervention order or an apprehended violence order to keep somebody away from somebody who says that they are being a victim of domestic violence?

Helen Campbell: Yes, both in relation to obtaining an apprehended domestic violence order, and also in defending a proceeding. So where the husband has said that it's the wife who is being threatening and the wife is able to produce an audio recording showing that in fact it's the husband that is being threatening, and therefore charges against the wife were dropped.

Damien Carrick: So it can be in a sense a shield against allegations as well as evidence in support of allegations against the other party.

Helen Campbell: That's right.

Damien Carrick: Lawyer Helen Campbell, executive officer with the New South Wales Women's Legal Service.

Kate (not her real name) has been embroiled in Family Court litigation for over a decade. Her ex-husband has made many allegations against her. To try to counter these allegations, she was advised to record every interaction she has with her ex. Kate's voice has been digitally altered.

Kate: So the police and some anti-domestic violence people I spoke to and also some lawyers I spoke to, I collected all the advice they were giving me, and it was advice from police to use a mini audio recorder, like a little mini dictaphone that was on the market at the time, and they said that I should use this and run it every time I had contact with my ex-husband, and not to do what they call ambush style recordings but to record more in the style of metadata, that's the word, where you record absolutely everything, for no reason to attack anybody but just to hold in defence so that the next time he made an allegation against my conduct at a changeover, I could just say what day and what time was that, what day was that, and I could just pull out the data file and say, well, there's what happened during the changeover, and if you have any questions, give me a call. And that gave me great comfort. So I was able to continue meeting with him at changeovers and having interactions with him with my children, knowing that I was protected.

Damien Carrick: So over how many years did you keep this sort of metadata log of your interactions?

Kate: All together eight years.

Damien Carrick: And did you ever seek to use this sort of data to refute an allegation made by your husband against you, say, to the police or in a court?

Kate: I certainly did. Firstly, I had had interactions with the police, like phone calls and visits from the police from time to time when a false allegation had been made, and each time I was able to say, 'I have that incident audio-recorded, so if you want to pursue it any further, just let me know and I'll give you the data file.' And gradually I felt the police turn around…I don't know what notes they keep, but…whereas at first I felt I wasn't believed and I was treated like some sort of hysterical woman who couldn't control their emotions around their ex-husband or something, but over time I think they started to see that I was on solid ground and I felt better supported by the police.

Damien Carrick: What about the Family Court itself and this kind of ongoing litigation with your ex, did you ever try to introduce any of this information into any of those proceedings?

Kate: Yes. It was just a few years after I started these metadata recordings that he went to the Family Court with his third initiating application, and this time making more false allegations. But the pivotal allegation in his affidavit was that I had gone to the children's school on a specific day when there was an event on to which all parents were invited, and that I had gone there and made a terrible scene which frightened and upset him and traumatised our children et cetera. And in his affidavit he gave very specific descriptions about my alleged behaviour and he quoted, in his words, word for word the terrible things that I had apparently said.

And when I read that allegation I thought, at last, I've got this nailed, I can go straight to the Family Court and say you have to ask why this person keeps making false allegations against me. They can see that he has deliberately filed a false affidavit which is terribly prejudicial to me, and he's done that with the intention to minimise or restrict my contact with our children.

So in no time at all I filed a response to that affidavit where I explained to the court that I had been doing this type of recording on advice, and I was able to provide a very detailed transcript of the essential one and a half minutes of the conversation to show in a direct comparison that he said I'd said all these things, and here's the actual things that were said. And you could clearly hear and read that I was only a passive recipient of very aggressive, hostile behaviour. He was recorded threatening me and threatening the person I was with at the time at the school.

So yes, I went straight back with that response, and saying to be court it would only take one and a half minutes for you to listen to this recording based on the transcript, and we will finally know what's really going on here, and then the court can get on track, resolving how we are going to manage relationships with children and all that in forthcoming years, knowing that this character is actually like that.

Damien Carrick: Kate, not her real name. Unfortunately for Kate, the court would not admit the evidence. Instead, the proceedings continued for another two years. Kate's current lawyer has 25 years experience as a Family Court practitioner. Because we don't want to identify Kate, it's best not to name her solicitor. He is of the view that she was a very unlucky that her audio evidence was not listened to when the allegation against her was first raised.

Lawyer: The problem became that the trajectory that the case then took for a number of reasons meant that it didn't reach a final hearing for almost two years after that recording was made, and by that stage other events had taken over such that notwithstanding the contents of the recording and notwithstanding that in my view it clearly contradicted the evidence of the father, it became irrelevant at the final hearing, which is deeply unfortunate.

Damien Carrick: Do you think that the courts could operate differently? As Kate says, look, it was only a minute and a half of audio, it should have been looked at at the time, and this kind of snowballing could have been avoided. Do you share that view?

Lawyer: I do, unfortunately, and it really…I mean, I've been doing this work I think nigh on 25 years, and I haven't come across a family law judge that doesn't make every effort in the time available to achieve the best result, and it really just is that. So ideally there would be more time. But certainly absolutely, in an ideal world at least the judge would have heard the recording to determine whether or not it should be admissible or whether or not it should be used in the interim hearing. And I think if he had have heard it the case could have taken a very different course. But that can be said not just in relation to this type of evidence but in relation to a number of other aspects of family law matters.

Damien Carrick: Chief Justice Diana Bryant, what about using material as a shield to rebut allegations rather than to establish what the other party has done? Does that change the equation?

Diana Bryant: Not really. Again, people do use it for that reason, I've seen evidence of conversations admitted for that purpose. And again, it really depends on the quality of how it's done and how it is presented and how probative it is.

Damien Carrick: I spoke to a woman, we call her Kate, who says that she wasn't allowed to present audio evidence quickly at an interim hearing or to bring on a final hearing quickly, to rebut the allegation on which the proceedings were launched. And this led to the matter, she says, spinning out in terms of time and expense, when the matter could have been determined very expeditiously by just hearing that rebuttal evidence, that audio recording, which is only about two minutes long.

Diana Bryant: Look, it's difficult to say without knowing the case, and people have a subjective view about how relevant and probative the material is, and that might not necessarily be an objective position. But of course when you've got the question of whether it can legally be admitted, and if it is opposed by the other party, the court then has to determine whether it's of probative value, whether it should be admitted under the state legislation or the Evidence Act, those things often can't be dealt with at an interim hearing and have to go to a more substantial hearing before you can determine whether to admit it.

Damien Carrick: I've been speaking to a number of people, including this person Kate, who say that they were actually told by police that they should record their interactions with their ex-spouse as a defence against allegations. Is that something the Family Court has a view about?

Diana Bryant: We don't have a view about it, but I can understand why that would happen. There may be lawyers who'd give advice to record your interactions with your spouse. If done properly, it is a valuable way of obtaining evidence where you want to rebut something or where you want to establish something. So that doesn't surprise me. That of course doesn't answer the question of whether ultimately it's going to be admissible. That's got to be answered by the legislation and the provisions of the Evidence Act and the court when it hears the whole case and the value of the evidence. But as advice I'm not at all surprised by that and I think it's probably reasonable advice.

Damien Carrick: Diana Bryant, Chief Justice of the Family Court of Australia.

I'm Damien Carrick and this is the Law Report on RN, Radio Australia, ABC News Radio and on the ABC radio app. We are also tweeting @LawReportRN and @damien_carrick.

Dave (not his real name) is another person who was told by police to record his interactions with his ex-spouse. He says he received this advice after his ex-wife made serious allegations, allegations that the Family Court found were groundless. Dave's voice has been digitally altered.

Dave: I was advised by a police officer to record any contact because 'she is out to get you', were the words that were actually said to me.

Damien Carrick: And so from that point on did you start surreptitiously recording interactions which you had with your ex-partner?

Dave: That's correct. I was able to afford a small digital recorder, voice recorder, so each time there was any contact at changeover I had that on record. In relation to the amount of times, there was two folders that contained 99 files in each folder, and I think I got up to 99 in one and about 85 in the other.

Damien Carrick: Did you ever use any of these recordings?

Dave: I did use them in my affidavits. There were a couple of times where there was certainly…my ex-partner…certainly things in front of the children, after which I ushered them into the car and off we went.

Damien Carrick: So when you had concerns about her behaviour and also when she had concerns about your behaviour you are able to say 'look, I've got proof that this didn't happen'.

Dave: That's how I looked at it, I looked at it as a safety mechanism for both parties, and it was there.

Damien Carrick: Was she aware that she was being recorded?

Dave: In relation to the voice recordings, I had the voice recorder in my hand quite clearly for everybody to see, so I never asked her whether she knew or I never made any comment or statement that it was being recorded, it was just in my right hand.

Damien Carrick: So you would sometimes put some of this information in affidavits. Was that ever accepted by the court or referred to by the court?

Dave: No, not really in the final hearing, there wasn't an awful lot that was referred to from my affidavits.

Damien Carrick: Dave, there was also…your case is a complicated one, there were other recorded conversations which I think may have been admitted into your Family Court trial, and they involved the aftermath of a very dramatic event where your ex-partner's new partner tried to kill you, and he is now in fact behind bars serving a lengthy sentence. Tell me briefly what happened and what were the recordings that you sought to have referred to in the Family Court trial.

Dave: My ex-wife's partner hit me with a car and stabbed me five times and I was in hospital in a very serious condition. They were recordings that my sister made when she was arranging for my children to come and see me in the hospital, and that would have certainly given rise to some concerns about the attitude of my ex-wife.

Damien Carrick: Who I must say was not involved and there have been no charges laid against her. But you wanted to have those admitted in court. What happened there? They are referred to in the final reasons of the judge, aren't they?

Dave: They are referred to and they were inadmissible as they were, as the judge put it, illegally obtained.

Damien Carrick: So they were illegally obtained and the judge decided that they should not be heard as part of the evidence in your Family Court dispute with your ex-spouse.

Dave: That's correct, as my sister didn't advise my ex-wife that she was recording.

Damien Carrick: Dave, not his real name. Dave and his sister are not alone. Kate's lawyer, who we spoke to earlier, says a lot of Family Court litigants want to use this sort of evidence.

Lawyer: I would think as a percentage it's increasing. I haven't looked at the figures exactly but I would say 25% or 30%, as high as that.

Damien Carrick: Really? 25% of the people who walk through your door would say, look, I've got something on my smart phone or I've got some CCTV imagery, something like that?

Lawyer: If not more, or they're showing me a screenshot from Facebook or from a Twitter account or something and they are saying can we use this, or is this important, or they are asking whether or not they should go down that path and start recording or screenshotting or taking that path generally.

Damien Carrick: What do you recommend to a client when they ask you that question?

Lawyer: If it's taking screenshots, for instance, of something that might be on social media, then I say, well, go right ahead and then we will have a look at it. If it is in effective covert, so it's a recording that somebody mightn't know about, then my advice is to explain that it shouldn't be done generally, and if it is done it might offend a particular act of parliament or it might not be able to be used. But in some circumstances, some people feel so lacking in power and not having the power that they do it anyway, that is recording, to give them some sense of power when they come to court, or in the preparation of the court proceeding.

Damien Carrick: Have you come across cases where it subsequently has been used in court as evidence?

Lawyer: I have, in some circumstances where there has been a recording of children, even though it has been considered illegal, a judge has decided that it's in the best interests of the children to have that recording heard. The purposes of the proceeding to the judge can make a determination as to what is in the best interest of the children. Whilst I've had that happen, it's a rarity.

Damien Carrick: Are you able to give me any more detail without identifying the parties?

Lawyer: I can, and in fact ironically it backfired for the particular person. The background is that his wife had some serious mental health issues, so he was recording some events that happened in the kitchen. He was saying that his wife was unable to look after the children because of her bipolar disorder, so he filmed covertly, and of course during the course of that, one of the filming in a morning, from memory, his wife got very aggressive and very angry and was quite vocal and verbally abusive towards him. The problem was, it was clear when one looked at the footage that he provoked it. And in fact in one image when there was a snapshot of it, he had a smirk on his face. So in that particular instance it worked against him, even though he thought it was helping his case.

Damien Carrick: And just to clarify, he insisted on trying to present that as evidence in court, and presumably the judge thought that reflected badly on him.

Lawyer: He insisted upon it against advice and it reflected very poorly upon him.

Damien Carrick: Gee, I bet did. A lawyer with 25 years experience in Family Court matters. We haven't named him because earlier we also spoke to Kate, one of his clients, and we want to de-identify all Family Court litigants.

That's the Law Report for this week. Big thanks to producer Anita Barraud, and also to technical producer this week Carey Dell. I'm Damien Carrick, talk to you next week with more law.

*In the original broadcast, a quote was attributed to Justice McLennan from 'Janssen & Janssen [2016].' Justice McLennan was in fact quoting other judges in his reasoning. This transcript has been amended accordingly*