Recorded conversations in family disputes
Recorded coversations in family disputes are commonly used by people as ‘evidence’ about the other party portraying them in a negative light. The regulation of surveillance and listening devices is, in Victoria, set out in the Surveillance Devices Act 1999 (Vic). The Act defines surveillance and listening devices in some detail. Unequivocally, a mobile telephone, iPad or other tablet device, dictaphone or tape recorder are all considered either listening or surveillance devices under the Act.
The Act aims to regulate and protect the ‘private conversations’ of parties which are only conversations had in circumstances where the parties to the conversation can reasonably assume that they want only themselves to hear what is said.
Conversations had in public areas where it is possible for third parties to overhear are thus not considered private conversations.
It is not an offence under the Act to record a private conversation so long as the person recording is either a party to the conversation or has the consent of all others involved in the conversation to record it.
Given this, it is not illegal in Victoria for separated parties or parties to use recorded coversations in family disputes that they have with each other. However, this does not necessarily mean those conversations will be admissible in court.
Further, the Act clearly distinguishes between a conversation the person is a party to and one that a person is not. Thus, leaving a mobile telephone or other device capable of recording in a room where a conversation is taking place that the person is not part of is surveillance and is prohibited by the Act and punishable by fine or imprisonment.
For a recorded conversation between parties to a proceeding to be able to be used in evidence it must first be:
- Relevant to the issues in the dispute; and
- Must also not fall under the protection of the principles of ‘without prejudice’ discussions. Thus, any conversations had about former offers to settle property or previous arrangements for the care of children, are considered to be without prejudice and cannot be used against parties later in litigation. They are therefore not admissible in court whether recorded or not.
If the conversation is otherwise relevant to a fact or issue in dispute between the parties and is not without prejudice it may be admitted as evidence.
Parties should also however, consider the impact that the fact of their recording of the conversations may have on their case overall. Family Law judges have an extraordinarily broad discretion in relation to the making of property orders and; are required to take into account a wide variety of factors when making children’s orders.
Thus, whilst the ongoing recordings of conversations, changeovers, discussions or other interactions between the parties may help a person succeed on a minor issue of fact, it may well negatively influence the judges’ opinion of the person and their case overall.
Parties to family law disputes should be mindful of whether their recordings would perhaps mean that they ‘win the battle but lose the war’ and should consider very carefully these factors before providing any recordings to their lawyers or the court.
If you have recorded conversations in a family law dispute that you think are relevant to property or children’s considerations, give our team a call at (03) 9793 7888 or send us an email at email@example.com.