By Sharla Stevens
In the ACT it is illegal to use a listening device to record private conversations with another party, even if you are also involved in that conversation (Section 4 of the Listening Devices Act 1992). This means that technically you are not able to record any conversations with your ex-partner for family law matters.
If you are wanting to provide a copy of a recording of a conversation to the family court as evidence in your proceedings if, for example, the other party made threats of violence there are 2 exceptions to this rule.
Firstly, under section 4(3) of the Listening Devices Act 1992 you are able to record a private conversation if you are involved in that conversation and the recording of that conversation is considered, on reasonable grounds, to be necessary for the protection of that person’s lawful interests.
Secondly, under section 138 of the Evidence Act 1995 a court may still admit into evidence something that was illegally obtained if the desirability of admitting it outweighs the undesirability of admitting evidence that has been illegally obtained.
Both of these exceptions was explored in a recent case of Janssen & Janssen [2016] FamCA 345. In this case the mother recorded a conversation with the father, her ex-partner, where the father had made threats of violence towards the mother. The Judge was satisfied that this fit within the exception in the Surveillance Devices Act 2007 (which is the NSW version of our Listening Devices Act 1992 in the ACT) and that the mother recorded the conversation to protect her lawful interests not to be intimidated or harassed and that her action of recording the conversation was reasonable as it was unlikely that the father would have made such threats in public or in the court proceedings.
The Judge also commented that even if it didn’t fall under the exception in the Surveillance Devices Act she would still have admitted the recordings into evidence under the Evidence Act 1995 as it was desirable to admit the recordings as it was evidence of alleged family violence, for which no other evidene was available.
Therefore, although it is technically illegal to record a conversation with another person there may be exceptions to that rule to allow you to admit any recordings into evidence.
If you need legal assistance in relation to a family law matter please contact Alliance Legal Services on 02 6223 2400 to make an appointment to speak with one of our solicitors.
