Audio recordings-in-family-court-presentation

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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 …

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.

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  • 1. Audio Recordings in Family Court Proceedings Image Copyright ©Allure Media 2009
  • 2. ⨂ Prohibition on the installation, use and maintenance of listening devices ⨂Prohibition on communication or publication of private conversations or recordings of activities
  • 3. “[42] It is common ground between the parties that the recording of the private conversation between the parties by the father…is contrary to the provisions of the Surveillance Devices Act 2007 (NSW)…thus rendering the recordings illegal and the publishing of these recordings illegal.” - Huffman v Gorman [2014] FamCA 150
  • 4. Was there consent? Was recording reasonably necessary for the protection of the lawful interests of that principal party? Was communication or publication of private conversation reasonably necessary to prevent serious violence to persons or substantial damage to property?
  • 5. Image Copyright © ITLex Incorporated 2012 Important enough to warrant its admissibility?
  • 6. Evidence Act 1995 (Cth) Section 138 – Discretion to exclude improperly or illegally obtained evidence (1) Evidence that was obtained: a) Improperly or in contravention of an Australian law; or b) In consequence of an impropriety or a contravention of an Australian law; Is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
  • 7. What is the probative value of the audio recording? How important is the audio recording to the proceeding? What is the nature of the audio recording and its relation to the nature of the subject-matter at hand?
  • 8. Improper recording = impropriety or contravention of law Family Court considerations regarding impropriety:  Gravity?  Deliberate or reckless?  Likely to be addressed in any other proceeding?  Difficulty of obtaining evidence without its occurrence?
  • 9. “It is a matter which arises all too frequently, particularly in family law proceedings, and seems to have gathered support not only from parties to proceedings but also from legal representatives…It would seem, clearly, to be an evidence gathering exercise and one that, in my view at least…gives rise to serious concerns as to the behaviours of the party who records such evidence”. - Federal Magistrate John Croker, as quoted in Alexander, H. (4 February 2013) ‘Gotcha tapes disliked by court’, Sydney Morning Herald.
  • 10. Image Copyright ©FIXYOURTHINKING 2004