Most of us now carry recording devices in our pockets and although you may be tempted to gather evidence to bolster your case, you should think again before secretly recording your ex-partner.
In family law matters, this issue typically arises in relation to parents recording handovers or telephone/video calls between the children and the other parent. The recordings may be to demonstrate abusive behaviour, inappropriate conversation, undue interference by the other parent or reluctance by the children. They could also be to protect against further allegations being made by the other parent or to demonstrate positive engagement with the children. There have also been cases where recordings were made of conversations between the parties in relation to financial issues or to prove the existence of a de facto relationship. However, there are many reasons to desist from making such recordings.
Surveillance Devices Act
The Surveillance Devices Act 1998 (WA) makes it a criminal offence to use a listening device or optical surveillance device to record a private conversation or a private activity. The maximum penalty is a fine of $5,000 or imprisonment for 12 months or both.
A mobile telephone comes within a definition of a listening device or optical surveillance device if it is used to record.
A private conversation means “any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard”.
A private activity means “any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, but does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed”.
However, there are some exceptions to this offence, including where:
- Each party to the conversation or activity consents expressly or impliedly to being recorded.
- A principal party to the conversation or activity consents expressly or impliedly to being recorded and the recording is reasonably necessary for the protection of the lawful interests of that party.
- A principal party to the conversation or activity consents expressly or impliedly to being recorded and there are reasonable grounds for believing that the use of the listening device is in the public interest.
- A person has a child under their care, supervision or authority who is a principal party to a private conversation or activity and there are reasonable grounds for believing that the recording will contribute towards the protection of the best interests of the child and is in the public interest.
Therefore, it may be acceptable for parents to record handovers or calls with their children if there are reasonable grounds for believing this will help protect the best interests of the children. There are also cases where courts have accepted that recordings demonstrating family violence were made to protect that party’s lawful interests.
In Mane & Aspley  FCWA 118, the judge found that recordings of private conversations between the parties were reasonably necessary for the protection of the mother’s lawful interests. The mother’s case was that she feared for her life and that the father made threats behind closed doors. The judge accepted that the safety of the mother and child was a matter falling within the protection of the mother’s lawful interests.
Rules of evidence
In any event, such recordings may not be admissible as evidence in Family Court proceedings.
Section 138 of the Evidence Act 1995 (Cth) provides that evidence obtained improperly or in contravention of an Australian law is not to be admitted in proceedings unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way.
While this provision can apply to family law proceedings outside Western Australia, it does not apply in the Family Court of Western Australia and there is no equivalent provision in the Evidence Act 1906 (WA). Instead, a common law principle applies that it is a matter of discretion of the Court as to whether illegally obtained evidence can be admitted, after weighing up the probative value of the evidence in determining the matters in issue in the proceedings against the negative aspect of how the evidence was obtained.
In child-related proceedings, s 69ZT of the Family Law Act 1975 (Cth) / s 202H of the Family Court Act 1997 (WA) provides that the usual rules of evidence do not apply, but the Court can still give such weight (if any) as it thinks fit to evidence that would otherwise be inadmissible.
In Williams & Oamra  FCWA 62, which was a financial matter, the husband sought to adduce recordings of his private conversations with the wife. The judge concluded that the evidence was obtained illegally because the wife did not impliedly consent and it was not established that the recordings were reasonably necessary for the protection of the lawful interests of the husband. The judge was not persuaded to exercise his discretion to admit the recordings, saying that the recordings did not have sufficient probative value to overcome “the proper reluctance of the court to encourage or tacitly approve of the gathering of evidence by illegal means”, particularly having regard to the ample other evidence in the proceedings.
In Huffman & Gorman (No 2)  FamCA 1077, the father sought to admit recordings of conversations between the parties, in circumstances where he was claiming that the mother’s violent conduct had emotionally and psychologically harmed the children. The judge found that “the desirability of admitting evidence of family violence in a hearing where the best interests of children are paramount outweighs the undesirability of admitting evidence which was obtained unlawfully”.
Aside from the above issues, making secret recordings can be unseemly and backfire.
Although the party making a recording may think the content supports their case, it may actually provide more compelling evidence against them from the perspective of the Court and experts. For example, recordings could reveal a lack of insight or inappropriate questioning of children.
Further, if the party making the recording is more focused on obtaining evidence and their conflict with the other party, they may not be paying proper attention to the needs of the children during handovers or calls.
Unfortunately, in some cases, the children are aware that the recordings are being made, which could send negative messages that they should be concerned about the situation or that their parents cannot trust each other.
Recordings could also impact a party’s credibility if it appears as though they are trying to set the other party up, or if they are selective with only producing parts of recordings that are favourable to themselves.
Under the rules of disclosure in family law matters, if a recording relevant to an issue in the case is within the possession or control of a party, then it should be disclosed to the other party whether it is favourable or not.
In Breckenridge and Kudrna  FCWA 9, the mother made recordings of the father’s telephone calls with the children. The judge commented that these were “revealing for the ‘snippets’ of the mother’s interactions with both the father and the children”. She said that in particular a recording “of the mother demanding the father apologise to the children for a relatively inconsequential comment made by him was a prime example of the mother being utterly unable to either shield the children from her very negative attitude to the father or otherwise control her emotions whilst the children were in her presence”.
In Mane & Aspley  FCWA 118, the father claimed that the mother had edited the recordings, asked him selective questions to achieve an answer, and made some of the recordings in the early hours of the morning when he had consumed alcohol. The judge said that this would go to the weight to be placed on the evidence rather than to admissibility.
Permitted by the Court
We are aware of at least one case where the Family Court has specifically permitted parties to record the video calls between the other parent and a child. In that matter, the mother considered that the father was unable to control his anger and prevent the conflict between them from affecting his communication with the child. The Court found that it was in the child’s best interests for the video calls to continue, provided neither parent acted inappropriately. To help ensure that all interaction was child-focused, the Court allowed the parties to record the calls.
We recommend that you should obtain legal advice before recording your ex-partner without their consent. If you know or suspect that you are being secretly recorded, you should also seek advice about your options. Please do not hesitate to contact us at Lynn & Brown Lawyers to book an initial consultation.
About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.