Surveillance or Stalking – When can you use that recording in parenting matters?

Surveillance or Stalking – When can you use that recording in parenting matters?

Under the Surveillance Devices Act 2007 (NSW) recording a private conversation without consent is ordinarily illegal in NSW.  However, in Family Court matters the Court has discretion to permit evidence by way of recordings in some circumstances.

In the case of Shelbourne & Shelbourne [2017] FamCA 761, the Court considered whether a parent could rely on videos that had been taken of the other parent and the children as evidence. The Court found that a video recording taken by the father of the mother committing acts of family violence was admissible on the basis of it being necessary for the protection of the father’s lawful interests. This finding was made notwithstanding that ordinarily it is an offence to record a private conversation in NSW.

Another example where the Court has admitted secretly recorded conversations into evidence is in the case of Jasper & Corrigan (No2) 2017 FCCA 1467.  The main issue in this matter was the existence of a de facto relationship between the parties.  With the matter essentially being a contest between evidence of a “he said/she said” nature.  In determining the issue the Judge considered both the Evidence Act and Surveillance Devices Act.  It was found that a recording could be said to be legally obtained if it were necessary for the protection of the lawful interest of a party. In this instance the Court agreed with the mother’s position; that her lawful interest was the status of the relationship she had with the father and the recording went to that issue.

If you are unsure if you can rely on recordings as evidence in your family law proceedings or you are concerned that recordings may be used as evidence against you, contact one of our experienced Family Law solicitors at Merridy Elphick Lawyers.