Help finding Byrne and Byrne
I have read this regarding recording of phone conversations for family law matters:
Read Byrne & Byrne, for the definitive on the use of recordings in Family Court proceedings (and Federal Magistrates Court) Providing the recording does not breach the variations of the Listening Devices and Interceptions Act.
Transcribed notes of telephone conversations are used frequently in Family Court proceedings.
Can someone please tell me where I can find this Byrne & Byrne article?
I have searched for it and I can't find it, sorry but am new to this website.
Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunityExecutive Secretary - Shared Parenting Council of Australia
PAX saidFrom this ruling I am assuming it applies also to a child and not just another adult? Could anyone clarify that this is the case?
I believe Yes. HOWEVER, the tendering of evidence may itself be evidence to the decision maker. That is the decision may be influenced by why you were recording in addition to what you recorded. Are you self-representing, if so then perhaps check out the SRL (Self Represented Litigants) Group. If you have legal representation then beware that too often they are driven by the size of their own pockets and they may therefore see $$$ that are not in the client's best interest but that the client agrees to. Again perhaps try to get advice from the SRL Group. I believe that the SRL group is one of the most Family Law experienced groups in Australia.
PAX saidI thought this was the SRL Group that I was posting in? "Self Represented Litigants - SRL's".
This is a a topic for self-represented Litigants. However, there is an SRL group of people, who may help SRL's represent themselves. Here's a link to their website. SRL-Resources
Recording the ex in child custody and divorce disputes
In admitting any evidence in Court parties must remain mindful that through doing so they are seeking to persuade the Court of a particular fact. More specifically, there are three key issues that parties should consider before producing evidence.
- Firstly, parties should consider how to present to the Court evidence of the fact that they are claiming.
- Secondly and very importantly, parties need to consider whether the evidence is admissible, that is permitted, as evidence in the relevant proceeding.
- And thirdly, parties should consider the weight and importance of the evidence and its possible implications for the Court’s final decision. 1
Strict statutory rules and well established case law exist to govern the form and use of evidence in proceedings. Recent times have seen increased debate surrounding the use of audio recordings in court proceedings, and particularly, in Family Court proceedings. The key issue with the use of audio recordings in Family Court proceedings is not necessarily their use, but how such recordings were obtained which in turn determines their admissibility as evidence.
The letter of the law: RE audio recordings
Whilst exceptions exist in both State and Federal legislation, the principal rule is that a party must consent to being recorded by a listening or surveillance device. Without such consent, audio recordings are considered to be prima facie illegal, thus rendering the publishing of those recordings illegal, as seen in the recent Family Court case of Huffman v Gorman 2
The legislative basis behind the ruling in Huffman v Gorman and other such decisions lies in the Commonwealth Surveillance Devices Act 2004 as well as in the related statutes of States and Territories3
Such legislation purposed towards the protection of privacy and the facilitation of a cohesive scheme for controlling privacy infringements, prohibits the installation, use and maintenance of listening devices to record private conversations, both to which the person is and is not a party4
In addition, the communication or publication of private conversations, or recordings of private activities, is prohibited5 A lack of consent from other parties to record private conversations classifies the conversations as protected information6 and unauthorised recording as illegal and punishable as a criminal offence.
Exclusionary Provisions: Exceptions to the prohibition of unauthorised recording of private dealings
The above however, is not to say that audio recordings are always illegal and thus completely inadmissible as evidence in Family Court proceedings. Exceptions to the prohibition on recording, communicating and publishing private conversations do exist, but such exceptions, importantly, are limited. The Commonwealth Surveillance Devices Act 2004 and its corresponding State and Territory statutes permit the recording, communication and publication of private conversations in circumstances where all principle parties consent to such, either expressly or impliedly7.
In a situation where only one principal party consents to recording it must be shown that doing so was reasonably necessary for the protection of their lawful interests8. The then communication of such recordings is only acceptable when a party is rationally required to do so to prevent or reduce an imminent risk of serious violence towards a person or threat of substantial damage to property9.
The Commonwealth Evidence Act 1995 builds on this, allowing illegally or improperly audio recordings to be admitted as evidence only when the desirability of its admission outweighs the undesirability of how it was obtained10
Such an issue was raised in the case ofLatham v Latham11, where the benefits of recordings framing the mother as a serious child abuser were seen to outweigh the way they were obtained. A similar position was taken in Tripp v Tripp in which the value of an improperly obtained recording of an interview with a single expert witness prevailed over the circumstance of its recording 12
On the contrary however, there have been a number of recent cases where parties, believing that the benefit of information in audio recordings outweighs their illegitimate obtainment, have presented audio recordings which have been dismissed or have worked against them. In the 2011 case of Hazan v Elias13 a fathers recording of his conversation with a family consultant was held to be inadmissible under the Evidence Act 1995.
Furthermore, the 2012 case Farrelly v Kaling14, whilst circumstances were more severe in that some of the recordings presented were believed to be falsified, the recordings were held to reflect extremely poorly on the respondent father who presented them. It was held that the fathers’ recordings could not be relied upon15, and further, that such recordings raised a number of concerns and questions regarding the fathers’ character.
Whilst it is clear that exceptions to the prohibition of recording, communicating or publishing private and protected conversations exists, R v Lee16 reminds us that first and foremost, the circumstances in which the initial recording took place will always be relevant to the determination of whether or not there was a reasonable necessity for doing so.
What will the Family Court consider when deciding the admissibility of audio recordings?
In addition to the aforementioned exceptions and considerations, the Evidence Act 1995 outlines the matters that a court may take into account in determining the admissibility of evidence. Among those relevant to family law proceedings, the Family Court may consider the probative value of the evidence17, that is, to what the effect of the evidence in proving a said fact.
The Family Court may also consider the importance of the evidence in relation to the proceeding18, the nature of the subject matter of the proceeding19, and the gravity of the impropriety20 in making the recording.
In relation to the impropriety of the recording the Family Court may consider whether or not it was deliberate or reckless21, whether or not another proceeding is likely to be taken in relation to the improper recording22, and the difficulty of obtaining evidence without the impropriety23 of the recording.
Opinion of Legal Practitioners Regarding Audio Recordings
Members of the legal profession have expressed views regarding the use of audio recording in Family Court proceedings both inside and outside the courtroom. Reflecting on the multitude of cases in which audio recordings are admitted as evidence, Federal Magistrate John Croker has asserted that the use of audio recordings in family law proceedings appears to have gathered support both from parties to proceedings and from their legal representatives24
Despite such support, the use of audio recordings, to Magistrate Croker, arises too frequently and raises serious questions about the behaviour and character of the party who records and presents such evidence25
In a similar vein Senior Counsel Graeme Page attributes little worth to the presentation of audio recordings in court but gives credence to their use by lawyers prior to court proceedings in establishing the nature of events and those involved 26
Other practitioners, rather than expressing strong support or opposition to the use of audio recordings advise that they be approached with caution and that anyone contemplating their use strongly consider the relevant law and its implications27
It should be stressed that these laws are not static and changes are always a possibility.
For instance, the surveillance laws in South Australia may soon drastically change given the Surveillance Devices Bill before the South Australian parliament.
The South Australian Attorney General has stated that the changes to the laws were meant to “stop ordinary citizens bugging” each other and would not apply to recordings of public forums such as speeches, council meetings or Parliament. But, they would apply to private discussions where someone was recorded without consent. 28
This highlights the importance for any parties contemplating the use of audio recordings in Family Court proceedings, to ensure they consult their legal practitioner or a relevant legal body first.
Last edit: by OneRingRules