Can you use secret audio recordings in family law?
As technology continues to evolve, it is becoming more common for clients to ask whether they can use secret audio recordings in their family law matters. Before you consider recording your conversation with the other party, there are several important factors that you need to consider, including:
Whether the recording is legal to make in Queensland;
Whether a Court will allow the recording to be used as evidence; and
Whether you have an obligation to disclose the recording even if it does not achieve the desired purpose.
Queensland law for secret audio recordings in family law
While the legislation varies in the other Australian States, you can legally record a conversation with another person in Queensland, provided you are a party to the conversation. Pursuant to section 138 of the Evidence Act 1995 (Cth) (‘EA’), the Federal Circuit and Family Court of Australia (FCFCOA) has a broad discretion to exclude such recordings if obtained improperly or illegally. In deciding whether to exclude a recording, the FCFCOA must take into account the following:
The value of the evidence to be obtained from the recording;
The importance of the evidence to be obtained from the recording;
The nature and subject matter of the proceeding;
How the recording was obtained (whether it was reckless or deliberate); and
The difficulty in obtaining the recording legally.
The FCFCOA may also exclude a recording under section 135 of the EA if the recording is unfairly prejudicial to the other party, misleading or confusing, or may result in wasting the Court’s time.
The Court is more likely to accept secret recordings as evidence in parenting matters or in matters involving domestic and violence family. There are several notable cases that deal with this issue: