In the vexed family law world of "he-said-she-said", recordings appear to be an easy way to cut through and definitively prove or disprove whatever is being alleged.

This is an absolute misnomer, and notwithstanding the ease in which recordings can be made, there are a number of legal considerations and ramifications that flow.

The first thing to consider is whether it is legal to record a private conversation in your jurisdiction. In VIC, it is an offence to record a private conversation without the consent of all parties to the conversation, with some limited exceptions.

As to whether the recordings can be used in Family Law proceedings, the answer is "it depends". The starting point is to note that Section 138 of the Evidence Act 1995 (Cth) allows a Court to admit evidence that was illegally obtained, if the desirability of admitting it will outweigh the undesirability of admitting evidence that is known to have been illegally obtained. In other words, whether a recording will be allowed to be used in Family Law proceedings depends on the relevance and significance of the content of the recordings to the proceedings.

There are also broader considerations to take into account. For example, the timing of the recordings as compared to when they are disclosed in the proceedings, can have a significant effect on both the determination of whether they ought to be admitted, as well as on whether the party has complied with your duty of disclosure. The Court has also criticised litigants for attempting to manufacture evidence by deliberately goading and setting traps for the other party, which were subsequently recorded. This then goes to that party's credit in the proceedings.

The general trend of the Court is to discourage the making and reliance on recordings, and the number of cases in which recordings have been refused vastly exceeds those where they have been allowed in as evidence.

If you think you have been recorded, or you have a recording you wish to rely on, please get in touch with us and we can explore your particular circumstances and provide you with expert and strategic advice on how to proceed.

Contact Evelyn Young for more information on 0401 082 179.