Partner Has Secret Recordings?

What does the law say about secret recordings?

The impact of new technologies can be seen in many areas of life, and this includes the arena of family law. It seems that almost everyone has a mobile phone these days, and most of these phones are capable of making audio or video recordings. In addition, miniaturized recording devices are also readily available at a modest cost.

This has in turn frequently led to parties involved in family law disputes recording their interactions, either with their solicitor, or another party, or even their children. We are often told by our clients that they have a recording and that they wish to use it as evidence. Whilst on the face of it such evidence may seem helpful, the situation is not necessarily that simple, and this new technology and the secret recordings that arise from it need to be treated with care.

There are laws that govern the making and use of recordings. It is completely forbidden to record any part of any proceedings before the Court, whether you are present in the Courtroom in person or if you attend the proceedings by telephone. The Family Law Rules make this absolutely clear.

Outside of the Courtroom, the position in QLD is different from the other states and territories. Commonwealth legislation makes it illegal to record a telephone conversation with a  device attached to a telephone – does this include an app installed on a mobile phone? In QLD it is legal for someone who is participating in a telephone call to record the call, using an external device, and they are not obliged to inform the other participants in the call. Similarly, a person who is a party to a face to face conversation in QLD can secretly record that conversation, but it is illegal in QLD to record either a telephone call or a face to face conversation if the person making the recording is not a party to the call or the conversation and they do not have the permission of the participants in the conversation.

Whilst the Family Court can admit evidence even if it has been obtained illegally or improperly if the Court considers that the evidence is sufficiently important, there is a significant risk that the Court will take a dim view of the person who made the recording and that it will backfire.

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Whilst on the face of it making secret recordings may seem like an attractive idea, there are many pitfalls to be considered and you should ensure that you speak to your solicitor before you put any such evidence before the Court.

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