Evidence plays a crucial role in assisting the Federal Circuit and Family Court with making an informed decision. With the growing use of technology, video and audio recordings are being increasingly used in such proceedings, raising important questions about their admissibility and impact on the proceedings. In this blog, we will discuss the legislative framework surrounding video and audio recordings, and provide our recommendation on whether you should record somebody to support your family law case.
The Legal Framework
The Family Law Act 1975 is centred on the principle of “the best interests of the child,” with a focus on maintaining their safety, wellbeing, and meaningful relationships with both parents. Video and audio recordings can be used as evidence to shed light on a child’s experiences, their interactions with both parents, and their welfare.
Examples of such recordings include:
- Incidents of domestic violence to protect a child’s best interest;
- Parent-child interactions to demonstrate the quality of care, communication, and bonding between the child and each parent; and
- A child expressing their views to assist the court with understanding what they want.
Admissibility and Legal Considerations
There are many circumstances where it is unlawful to record a person. Recordings that may be seen to be unlawful include:
- Listening to or recording a person using a telecommunication system without their permission;
- Recordings obtained from a pre-installed listening device/wire tap; and
- Recordings obtained by intercepting communications such as text messages or web-based video communications.
Despite a recording being unlawfully obtained, the courts have the discretion to admit it into evidence if it is relevant to the proceedings and the desirability to admit the evidence outweighs the undesirability of admitting the evidence. In deciding whether the evidence is desirable, the courts will consider the evidences’ probative value, importance, nature, and whether it might be; unfairly prejudicial to a party, misleading, confusing, harmful to a child, or result in a waste of time.
If you intend to use video or audio recordings to make your case “look good” it is important to keep in mind that the evidence will be scrutinised by the court. While the evidence may be admissible, the court may also give it little weight or it could backfire. Judges and Magistrates are highly educated individuals who have great insight into family law matters. Hence, the courts will likely be aware if you are using the recording to pad your evidence, lead your ex-partner on, or attempt to paint yourself in a more favourable light.
Video and audio recordings provide unique insights into the lives of children and parents. However, they also come at a cost. It is crucial to adhere to legal standards and ethical considerations when introducing such evidence and if in doubt speak to your lawyer.
To arrange your free initial consultation with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.