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31 August 2016

Play it again, Sam

Family Law
Federal

Asked

In a recent Radio National podcast of the Law Report it was said that sound and video recordings are increasingly being used as evidence of family violence in the Family Court to the point where it is becoming commonplace. I want to use voice recordings as evidence of family violence in an initiating application. Can you tell me how I would go about physically including them - that is, do I state what is in them and reference them, for example, as 'available on demand'?

Thank you.

Answered

Thank you for the question.

The recordings can be transcribed and attached as annexures to the application. The applicant can also depose to the fact the recordings are available for production. It might be good to take them to the first court date - if the matter runs they might need to be played.

It is correct that recordings are used more and more, but there are a couple of things to consider first before using them:

1. Section 138 of the Evidence Act 1995 (Cth) – A court has the discretion to exclude improperly or illegally obtained evidence. Ensure it was obtained legally.

2. State-based legislation governs the recording. For example, s 6 of the Surveillance Devices Act 1999 (Vic) says if the party has obtained a recording of a conversation which they are not involved or did not participate in and the parties have not consented to the recording, it may be a breach of this section.

3. If there is a breach, the court will weigh up whether the evidence should be admitted, and will consider the probative value of the evidence, the importance of the evidence, the nature of the evidence, the gravity of the impropriety of the contravention and whether it was deliberate or reckless.

4. The courts also have general discretion to exclude evidence pursuant to s 135 of the Evidence Act 1995 if 'the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, misleading or confusing or…result in an undue waste of time'.

5. In a number of cases the judicial officer has admitted the evidence however has been highly critical of the recording party. Ensure that the recording won’t be detrimental to the client’s case.

Some relevant case law includes Badger & Badger & Ors [2013] FMCAfam 124 (14 February 2013); Simmons & Simmons [2013] FCCA 304 (24 May 2013); Janssen & Janssen [2016] FamCA 345 (1 February 2016).

Regards

Mentor