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Adding to the Conflict – Recording conversations in Family Law Matters

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By Lauren Patford-Smith, Lawyer, Mason Sier Turnbull

Family Law Practitioners are seeing an increase in the number of people who secretly record themselves in conversation with their partners in an attempt to gather evidence against the other party. However, these types of recordings rarely pay off and parties should be advised not to do so. An example of this is the case of Farrelly v Kaling- BC201204340.

Federal Magistrate Coker stated in relation to a dispute where a friend of the mother had taped conversations to use as evidence against the father that “the recording held little probative value and reflected worse on the person who made it.”

Federal Magistrate Coker went on to say in his judgment ”It is a matter which arises all too frequently, particularly in family law proceedings, and seems to have gathered support not only from parties to proceedings but also from legal representatives.”

”It would seem, clearly, to be an evidence-gathering exercise and one that, in my view at least gives rise to serious concerns as to the behaviours of the party who records such evidence. I’ve seen it happen where parents have coerced children into making allegations of abuse by the other parent where there’s little other evidence. It reflects extraordinarily badly on the parent.”

Graeme Page, SC, who represented the father, said recordings could be a useful evidence-gathering exercise, but they were worthless in Court.

”They quite often give information to counsel as to what has taken place and the nature of the person and the way that [counsel] will cross-examine them,” Mr Page said.

The Family Court has grappled with the admissibility of such evidence.

In a 2008 decision, Latham v Latham [2008]FamCA 877, the court allowed the father to tender recordings of the mother that ”painted her as a seriously bad child abuser,” because the benefits of the evidence outweighed the way it was obtained.

However, the Courts have generally established that the party who knew the recording was being made (who was the recorder) was likely to be on their best behaviour (Robertson v Sento – BC200950017) and the behaviour of the other person could not be taken as typical, given the emotional nature of marital disputes, and especially those involving children.

In conclusion, there is little weight that can be put on evidence gathered through recording conversations and parties should think twice before doing so.

For further information and advice, please contact our Family Law team on (03) 8540 0200.