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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:
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 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 families. There are several notable cases that deal with this issue:
In family law, the duty of disclosure extends to audio recordings. Therefore, you are required to disclose to the other party any audio recordings in your possession that are relevant to the proceedings, whether or not you intend to rely on such recordings as evidence.
In light of the above, it may not always be in your best interests to use secret recordings. However, the usefulness of a recording may far outweigh the implications in circumstances where domestic or family violence has occurred and/or the children are at risk of harm.
If you have any questions in relation to audio recordings and their probative value in family law proceedings, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced and Best Family lawyers Brisbane.
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