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Is it legal to record conversations with former partners to use as evidence in Family Court proceedings?

By Camille Eckhaus, Associate

Is it legal to record conversations with former partners to use as evidence in Family Court proceedings?In this technological age, smartphones have made our lives easier. From almost anywhere, we can now do our grocery shopping, Snapchat or scroll through Facebook. But, just as phones have made everyday activities more convenient, they have created for us problems we never before had.

In the media recently has been a series of articles about Facebook groups in which men are encouraging one another to record conversations between themselves and their former partners and use those recordings as evidence in their Family Court proceedings. However, this isn’t a phenomenon limited to men. Increasingly, actual or would-be litigants in the family court are choosing to record conversations as a means of collecting evidence against the other person. As smartphones are small and easily hidden, these recordings are occurring secretly, without one party knowing what is happening.

What litigants in Western Australia don’t always realise is that, in recording one another, they could potentially be committing a crime. Section 5(1) of Surveillance Devices Act 1988 makes it an offence to install, use, or maintain, or cause to be installed, used or maintained, a listening device –

  1. to record, monitor or listen to a private conversation to which that person is not a party; or
  2. to record a private conversation to which that person is a party.

What constitutes a private conversation is defined in the Act. Broadly speaking, it includes any conversation occurring in circumstances where it could reasonably be assumed that either of the parties intended it to be private, but doesn’t include a conversation where one of the parties ought reasonably to have expected that they might have been overheard.

This means that, if two people are shouting at each other in front of a busy McDonalds, the conversation would not be a private one. However, if those same two people have a disagreement in the driveway of one’s home, it could constitute a private conversation. It will depend on the circumstances in which the conversation occurs.

The effect of the provision is that, if one person records a private conversation, they could be committing a criminal offence.

There are, of course, exceptions to this rule, the one most applicable in family law litigation being s 5(3)(d). This provides that subsection (1) does not apply to the installation, use, or maintenance of a listening device by or on behalf of a person who is a party to a private conversation if –

  1. a principal party to the private conversation consents expressly or impliedly to that installation, use or maintenance and the installation, use or maintenance is reasonably necessary for the protection of the lawful interests of that principal party.

What is key here is that the recording was ‘reasonably necessary for the protection of the lawful interests’.

The test of reasonableness is an objective one having regard to the circumstances existing at the time the recording is made. It must be an appropriate course of action to adopt at the time.

The question of what constitutes a ‘lawful interest’ is less clear. Various cases have reached different conclusions, including:

  1. The likelihood that one party would deny the conversation between him or her and a child occurred.
  2. The need to protect oneself from the risks of an accusation that the conversation between a party and the children had been fabricated.
  3. The need to protect a child of the relationship.
  4. The need for a witness to protect his or her credibility and to protect against a charge of making false allegations about serious matters. That is, to resist an allegation of a crime having been committed.
  5. Where the recording is made to uncover, or prevent, a crime.

It has been held, however, that merely seeking to have an accurate record of the conversation is not enough.

In the Family Court of Western Australia, just because evidence is gathered illegally does not mean that it cannot be relied upon and may still potentially be used in a case even if the exceptions don’t apply.

In children’s proceedings, Division 12A of the Family Law Rules allows judicial officers to consider any evidence that he or she considers is relevant to the children’s best interest. This includes material obtained illegally.

Even in property proceedings, however, the Court can have regard to illegally obtained recordings. In Wilkinson and Asher, Justice O’Brien held that the issue was a discretionary one, and required the Court to balance the ‘probative value of the evidence in determining the matters in issue in the proceedings against the negative aspect of the method by which it was obtained and the reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means.’

Basically, the Court will look at the evidence and determine whether it should be admitted, having regard to its usefulness. In the case of Masri v Masri, for example, the Court held that a recording which demonstrated the husband’s anger management issues was not of great significance where the wife was seeking that the husband spend substantial and significant unsupervised time with the children. Essentially, in circumstances where the orders the mother sought demonstrated that she was not genuinely concerned that the father posed a risk to the children, the court did not consider that the recordings were important evidence.

However, if the recordings do contain important evidence, there are two very important matters to consider before seeking to rely on this information.

The first is that the Family Court has the power to refer a person to the Department of Public Prosecutions if the judicial officer considers that a crime has been committed. Therefore, just because the material has been admitted as evidence does not mean that the person who made the recording has avoided criminal charges being filed. The way to prevent these charges is to seek a section 11 certificate. This is a certificate, granted pursuant to section 11 of the Evidence Act 1905 (WA), which provides that the Court may prohibit evidence given from being used as part of a criminal prosecution. However, there are specific rules regarding the granting of a certificate and, if you wish to make use of illegally obtained recordings, you must obtain advice about this protection.

The second matter to consider is the value of the material obtained. In Eades & Wrensted, Justice Walters made the following observation after a father played in Court a recording of the mother,

The mother was being recorded without her knowledge, and the father clearly saw it as being in his interest to subject the children to the mother’s impatience with him in order to gain evidence against her. The mother’s language was coarse and offensive, and obviously should not have been used in the presence of the children. On the other hand, that the father saw fit to engineer a situation in which he could seek to embarrass the mother, that he was quite content to allow the children to serve as “extras” in that engineered situation and that he did not take immediate steps to remove himself from the mother’s home in order to spare the children further distress, reveals that he was quite prepared to use the children to obtain a perceived advantage over the mother.

In that case, his Honour took the view that playing the recording was ‘counter-productive’ in that, as much as the mother’s conduct was unbecoming; it also demonstrated that the father was not child-focused and was prepared to use the children to meet his own ends. Ultimately, the recording hurt the father’s case more than it helped.

The usefulness or otherwise of the recording depends on the particular facts of each case.

The take-home message here is that you need to be very, very careful when collecting evidence for use in Family Court matters and when in doubt, see a lawyer.