In the era of smart phones as ‘life companions’, it can be very tempting and easy to use your phone to make an audio or video recording of another party misbehaving to use in family law proceedings as evidence.
This form of evidence has been increasingly provided in family law courts for various reasons, including as evidence of an ex partner’s behavior in front of their children, to record threatening behavior and language, and to present covertly obtained admissions of guilt.
Under the Surveillance Devices Act 1998 (WA) (Surveillance Devices Act) it is a crime in Western Australia to install, use, or maintain, or cause to be installed, used, or maintained, an optical surveillance device (a) to record visually or observe a private activity to which that person is not a party; or (b) to record visually a private activity to which that person is a party.1
It is also a crime to publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.2
The definitions of “listening device” and “optical surveillance device” capture mobile phones with recording capacity.3
For a recording not to be a crime in Western Australia there must be express or implied consent from all parties involved in the recording, or the recording is reasonably necessary for the protection of the lawful interests of the person making the recording.4
There are exceptions to this general rule. For most of Australia, the Evidence Act 1995 (Cth) (Evidence Act) is the starting point for assessing whether or not the evidence obtained illegally is admissible. The Evidence Act codified the principle in Bunning v Cross,5 which Western Australian Courts rely upon.
The principle states that evidence that was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.6
The discretion afforded to judicial officers in family law courts by the law means that cases turn on their own facts. The Courts must consider whether the “probative value” of the evidence, meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.7
The Courts’ considerations include but are not limited to: how the recording was made; whether it was made intentionally; whether there was awareness by all parties of the recording at the time; whether there was actual or implied consent by the other parties in the recording; whether the party adducing the evidence was a party to the conversation; and whether the publication or communication of the recording is for the protection of the lawful interests of the person making it.
In Latham & Latham,8 a father tendered recordings of conversations between himself, his wife and his children, recorded without the knowledge or consent of the others. The evidence was adduced to support his interest in having parental responsibility for the children and in support of his obligation to protect their interests. The Court accepted the submissions of the father, finding that the recordings were “reasonably necessary for the protection of the lawful interests of that principal party”.10
Similarly in Huffman v Gorman,11 a father tendered lengthy transcripts of conversations with the mother where she threatened to harm the children. These were recorded without her knowledge or consent. The Court found that the recordings were illegally obtained but declined to exclude the evidence on the grounds that it was of considerable probative value, the father’s conduct in making the recordings was at the least serious end of the spectrum and there was no basis to find that its admission would be unfairly prejudicial to the mother. Overall, the desirability of admitting evidence of family violence in a hearing where the best interests of children are paramount outweighed the undesirability of admitting evidence which was obtained unlawfully.12
In Gawley & Bass,13 the court distinguished the facts from those in Latham & Latham and Huffman v Gorman. Here, the father was not a party to the conversations that he secretly recorded in the mother’s home. The father’s impropriety of making the recordings was deliberate. Having regard to the transcript summaries, the court was not satisfied that the evidence was of a “potentially high” probative value or “potentially important”, which was the test prescribed in Latham & Latham.14 The Court was not persuaded that the desirability of admitting the balance of the transcripts outweighed the undesirability of admitting them in the way they were obtained.
Providing recordings as evidence can also backfire on the party seeking to use them. The Court can decide that evidence is probative enough to warrant admission but then ultimately consider it negatively against the person who made the recording as well as the person who was recorded. For example, where video footage captures the party provoking the anger and verbal abuse that they attempting to illicit for evidence, or where a parent secretly places a recording device in a child’s toy for the purpose of recording what is said at the time of handover.15
It can also be difficult to decide how to present the recordings, whether as entire recordings or as small segments. The Courts can criticise a party for being selective or for being overwhelming. In Latham & Latham the mother submitted that the integrity of the husband’s recordings was compromised by the fact that “snippets” were used which did not fairly portray the totality of the conversations that took place.16 The Court held that the “snippets” were admissible as evidence, and permitted the mother to submit the remaining 11 hours of the husband’s recordings if she wished.17
You can potentially use recordings in the course of your family law proceedings, but the probative value must outweigh the prejudicial effect to the other party. If it does not, you run the risk of the court not accepting the evidence and therefore exposing yourself to criminal liability.
If a person intends to give evidence using means that would constitute a breach of the Surveillance Devices Act, they should consider obtaining a certificate of privilege against self incrimination.18 An application for a certificate should be made prior to providing the evidence because certificates are not granted retrospectively.
 Surveillance Devices Act 1998 (WA) s 6(1).
 Surveillance Devices Act 1998 (WA) s 9(1).
 Surveillance Devices Act 1998 (WA) s 3.
 Surveillance Devices Act 1998 (WA) ss 6(3), 9(2).
 Bunning v Cross  141 CLR 54.
 Evidence Act 1995 (Cth) s 138(1).
 Evidence Act 1995 (Cth) Schedule, Oaths and Affirmations.
 Latham & Latham  FamCA 877.
 Latham & Latham  FamCA 877 .
 Listening Devices Act 1984 (NSW) s 5(3)(b)(i). The corresponding Western Australian provision is Surveillance Devices Act 1998 (WA) s 9(2)(vi).
 Huffman & Gorman (No 2)  FamCA 1077.
 Huffman & Gorman (No 2)  FamCA 1077 .
 Gawley & Bass  FCCA 1955.
 Latham & Latham  FamCA 877 .
 Helen Campbell , ‘Can video or audio recordings be used in the Family Court?’ (17 January 2017) ABC Radio National <http://www.abc.net.au/radionational/programs/lawreport/video-and-audio-in-family-court/8062498>.
 Latham & Latham  FamCA 877 -.
 Latham & Latham  FamCA 877 .
 Evidence Act 1906 (WA) s 11.