Can I Secretly Record Phone Calls?
My name is Bruce Provan, I’m the Managing Director of Page Provan Family and Fertility Lawyers. We’re a firm of lawyers in central Brisbane practicing exclusively in family and fertility law.
I want to talk to you today about secret recordings in family law because this is a query that we get from clients from time to time. It’s a fraud area, and if you’re wanting to rely upon secret recordings, it’s best to get advice about it before doing so. The court has the discretion to allow secret recordings into evidence pursuant to the Evidence Act.
But in some circumstances, it’s actually illegal to record a conversation. In Queensland, it’s lawful to record a conversation if you are a party to that conversation, but it’s not if you aren’t. So in each case, if you’re trying to rely upon a secret recording in a family law proceeding, much depends on the discretion of the judge whether that should be allowed into evidence.
There are a few cases that shed some light in the circumstances where a judge might do so. There’s the case of Simmons in 2013, where a mother planted a recording device on her child to record the conversations and what happened when the child spent time with the father.
When it came before the court, the judge, Judge McClelland, allowed that recording into evidence, but was highly critical of both parties, including the mother for having planted the device on the child when she went to the father. But despite that, the evidence was cogent enough that the judge decided it should be allowed into evidence.
It’s much more likely that a secret recording will be allowed into evidence in a parenting proceeding than a property proceeding, and the reason for that is that parenting proceedings are very much about preserving what is in the best interests of the child and protecting the safety of the child and if a secret recording is going to be cogent evidence to assist the court in making a decision about that, the judge will probably allow it into evidence.
There’s a couple of other cases, there was a case of Janssen in 2016 where a mother recorded a conversation with the father where she alleged that she had been a victim of domestic violence, it was secretly recorded, and the court came to the view that if that wasn’t allowed, a secret recording wasn’t allowed, it would be hard for the mother to reduce other evidence of the domestic violence which she suffered, and then there was a case of Coulter in 2019, where a mother recorded what happened at a changeover and the court in that case allowed the recording into evidence.
So in each case, if you’re seeking to rely upon recording, to be relied upon it in evidence or considering doing so, it’s best to seek advice from an experienced family lawyer before you do so.
My name is Bruce Provan from Page Provan Family and Fertility Lawyers.