Parties in Family Law proceedings are very eager to gather as much evidence as possible to support their case...but what happens when the manner in which they procure evidence is unlawful?

We often have clients instruct us that they have video or sound recordings of their former spouse yelling abuse or divulging information to them that is relevant to their court proceedings. The client thinks, "Bingo! I've got a secret recording of my ex. Let's put it in my Affidavit, the Judge needs to know about this!" 

This is becoming increasingly prevalent because of smart phone technology which makes sound & video recording as simple as the click of a button.

The problem with’s illegal under Part 2 of the Surveillance Devices Act 1999. The offence is punishable in Victoria by up to 2 years imprisonment.

A case study: Gawley and Bass

In the case of Gawley & Bass 2016, the issue of secret recordings in Family Law proceedings was explored.

Facts of the case:

  1. The father sought to rely on an affidavit which contained evidence about the installation by him of a listening device in the mother's home without her knowledge between 24 July 2015 and 10 August 2015. There were several recordings obtained by the father during that period of time;
  2. The father transcribed and annexed to his affidavit a summary of the recordings. He did not seek to tender the actual recordings at the hearing. 
  3. Some of the recordings obtained by the father occurred when he wasn’t in the mother’s house. He was not a ‘principal party’ to the recording.
  4. The recordings included the mother screaming at the children, using inappropriate terms towards them, and criticising the father. The father argued that the recordings evidenced the mother’s inability to control her anger.
  5. As a result of the father installing the listening device, the mother obtained an Intervention Order against him. She disputed the accuracy of the father's transcripts of the recordings and argued that they were in breach of the legislation.
  6. The Mother objected to the transcript of the recordings being submitted into evidence. She argued that the father was merely on a “fishing expedition” for evidence that would assist his case.
  7. The Independent Children's Lawyer (“the ICL”) stated that the recordings should be submitted into evidence. The ICL was of the view that “it is well accepted that the recording of a conversation in the context of a dispute whereby facts are in issue between the participants of the conversation is a step “reasonably necessary for the protection of the lawful interests of that principal party”.
  8. The father argued that he had concerns about the mother's treatment of the children in his absence after what one of the children told him of the mother's treatment of her. He submitted that the recording was reasonably necessary to protect his and the children's lawful interests. 
  9. The Judge considered the decision in Sepulveda v R. In that case, it was held that "reasonably necessary" means appropriate, but not essential. That is, it is sufficient if the recording is reasonably appropriate rather than essential for the protection of the lawful interests of the person. It was also held that reasonable necessity should be judged objectively upon the grounds that exist at the time of the recording. 

The Court held:

  1. That in relation to some of the father’s recordings, it was reasonably appropriate for him to record the conversation and that those recordings should be submitted into evidence.
  2. However, in relation to recordings that the father obtained when he was not present in the mother’s home, the Judge found that the father had interfered with the privacy of the mother. In those circumstances, the Judge was not persuaded that the desirability of admitting these transcripts outweighed the undesirability of admitting them in the way that they were obtained.
  3. In relation to a recording which contained evidence about the mother’s conduct towards the child and her attitude towards parenting, the Judge found that it was “potentially important” as it was evidence of family violence, which was relevant to the Court in determining what orders would best promote the interests of the children.

It is important to note that in the matter of Gawley & Bass, the Father was not charged and imprisoned because he had obtained a ‘Section 128 Certificate’ prior to submitting his evidence to the Court, thus protecting him from prosecution.

If you believe that you have evidence that could assist you in your Family Law matter, it is very important that you discuss the evidence with a lawyer first, as there may be legal implications arising from the manner in which you obtained it. For specific advice in relation to secret recordings and Section 128 Certificates, please contact one of the Family Law team at the Tonkin Law Group on (03) 9435 9044.