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Smartphones and Surveillance in Family Law

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By Belinda Spong, Senior Associate, MST Lawyers

The smartphone era of the 21st century has lead to more parties accessing sophisticated technology including the capacity to make voice and video recordings and also track the movements of others. Such recordings are often made openly in fun, but sometimes taken covertly with other purposes in mind.

Parties engaged in family law litigation often ask if they can rely on recordings they have taken of their estranged partner, and importantly, whether or not such recordings are likely to be accepted into evidence and considered by the judge hearing their case.

The Commonwealth Evidence Act 1995 (“the Commonwealth Act”) provides parties with a legal framework for the consideration for the admissibility of evidence in Australian family law proceedings. As a starting point, the Commonwealth Act informs parties that evidence taken improperly or in contravention of 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[1].

Often, the knowing communication or publishing of a recording of private conversations constitutes a criminal offence punishable by at the very least, a fine. For example, the Victorian Surveillance Devices Act 1999 (Vic)[2] provides thatpersons found guilty of communicating or publishing recordings of private conversations may be imprisoned up to 2 years, or fined up to $3700. Corporations may be fined up to $182,000[3].   Recordings are defined to include voice and video communications and results taken from tracking devices. Communicating and/or publishing recordings of private conversations may be found not to be a criminal offence in circumstances where it can be proven that by implication a party consented to the communication of the conversation or where the communication or publication is found to be in the public interest. Parties publishing such communications or recordings may also exempt from conviction if the only publication is in legal proceedings.

In circumstances where a party has been tracking the physical or electronic activity of another, they may be convicted of stalking. In Victoria, the Crimes Act 1958 provides that stalking is a criminal offence punishable by up to 10 years imprisonment.[4] Stalking is defined by a long set of circumstances to include, amongst other things, keeping a person under surveillance and tracing a person’s use of the internet, email or other electronic resources, causing their computer to undertake an unauthorized function together with physical activities including following and contacting a person by phone, email and text.

Stalking can only be found in circumstances where the offender has undertaken the activity with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person[5].

Traditionally the family law courts have taken a conservative view and usually denied admission of covert recordings into evidence. However, in the recent reported case of Huffman and Gorman (No 2)[6] Judge Harman of the Family Court of Australia found that evidence of recordings made by the father of the mother and their arguments and violent incidents during the marriage should be admitted to the proceedings.

Factually the parties had 3 young children. The parents were in dispute as to future arrangements for the care of the children following the breakdown of their relationship. The father alleged the mother had been manipulative and violent during the marriage. The mother denied these allegations and relied upon the fact the father had never made reports to police of his concerns during the marriage. In response to the mother’s denials, the father produced a number of recordings of their exchanges made on dicta tapes during the relationship. He ultimately transcribed a range of those discussions word for word into his sworn affidavit material. The mother objected to the father’s inclusion of that evidence and sought that the transcription of those discussions be struck out from his affidavit material.

After consideration of the matter, Judge Harman found that the value of the evidence outweighed the issues surrounding the father’s way of collecting the evidence. Procedurally during the proceedings, the father had placed the mother on notice of the recordings and given her copies of the actual recordings together with the transcripts. The mother had the opportunity to test the provenance of the recordings.

In deciding to admit the evidence, Judge Harman acknowledged the “notorious difficulty” of obtaining “evidence of family violence which takes place behind closed doors”[7]. He acknowledged that even if the father did complain to police, it would be extremely difficult for police to obtain this type of evidence of conversations which contemporaneously evidence the perpetration of family violence.

Whilst Huffman‘s case is a rare example, as technology continues to become more sophisticated and accessible to the public, family law decision makers will need to grapple with the exercise of balancing the evidentiary value of covert recordings against the challenges associated with breaches of privacy and the use of illegally obtained evidence.

Should you have any questions relating to any aspect of family law please contact the author Belinda Spong on +61 385400238 or our Family Law Team by email family@mst.com.au or by telephone +61 38540 0200.

 [1] See section 135 of the Evidence Act 1995 (Commonwealth).

[2] Of which there are like pieces of legislation around Australia, see for example Surveillance Devices Act 2007 (NSW).

[3] See section 11 of the Surveillance Devices Act 1999 (Victoria).

[4] See section 21A of the Crimes Act 1958 (Victoria).

[5] Section 21A of the Crimes Act 1958 (Victoria).

[6] [2014] FamCA 1077 (13 October 2014)

[7] At 43.