In general, the laws of evidence ensure that courts rely on evidence that is relevant and probative.

With the evolution of social media and the extensive use of smartphones as well as various forms of  computers and surveillance, we are finding that a plethora of electronic evidence is being submitted on behalf of parties in Family Law proceedings as a form of documentary evidence in the Family Court.

This has required some interpretation of the application of legislation and relevant family case law.

Admissibility and inadmissibility of electronic evidence

Electronic evidence includes (but is not limited to) emails, text messages, facebook posts, Instagram posts and video recordings using ipads and smartphones.

Whilst various general legislation has been made to cover the admissibility or inadmissibility of electronic evidence such as the Telecommunications (Interception and access) Act (Cth) 1979 [section 7 prohibits the interception and recording of telephone calls, such recording can only be done with the consent of the party being recorded and section 63 prohibits the use of unlawfully intercepted information as evidence in a proceeding] and the Evidence Act (Cth) 1995, leniencies in terms of the reliance of computer generated evidence on the part of the Courts exist.

Such leniencies can be seen in the Evidence Act in –

  1. section 58 – the Court has extensive discretion to decide whether evidence is relevant or not, giving the Court the power to determine whether a piece of evidence is authentic or not.
  2. section 71 permits recording electronic communications that relate to identity of the person sending the communication, the date it was sent and the person addressed in the communication;
  3. section 147 states that if a document is produced by a device in the course of a business, evidence is not required about the accuracy of the device.; and
  4. section 161 – if a document purports to contain a record of an electronic communication, then it is presumed that the communication was made as it appears on the document.

Other leniencies can be found in the Surveillance Devices Act 2007(NSW) where section 7(1) makes it illegal to record a private conversation, whether or not you are a party to that conversation. However, exceptions exist in section 7(3) such as when all parties to the conversation consent and it is reasonably necessary for the protection of the parties’ lawful interests.

Application of Evidence Law

The application of evidence law within the Family Law system is of particular interest as Judges are required to take sensitive matters into account (often involving the best interests of children) such as parties’ consent to recordings where hidden cameras are relied upon, whilst still ensuring that considerations such as family violence and importance of protecting the children from harm remain paramount.

We also see in the Family Law system that the admissibility of electronic forms of evidence is being dealt with on a case-by-case basis with respect to both the legislation (and case law as outlined below)

In Simmons & Simmons [2013] FCCA 304, the mother placed a recording device on her children before they spent time with the father. The Court admitted the evidence but reprimanded the mother for her actions: ‘…the mother’s actions in sending the child for supervised visits with recording equipment secreted on her is similarly appalling behaviour.’ 

In Janssen & Janssen [2016] FamCA 345, the mother made recordings of conversations with the father where he made threats to her and her Children which included physical violence.

The Court accepted the recordings as evidence of the mother’s allegations that domestic violence existed in their relationship.

In Garner & Garner (2016) Fam CA 630, the wife’s recordings of the husband without his consent was admitted as evidence on the basis of the evidence being given to the court with both parties’ consent and in circumstances of the existence of family violence. The content of the recordings were considered to fall within the definition of family violence.

In Jasper & Corrigan (2017) FCCA 1467, the parties agreed that the wife had recorded the husband’s conversation without his consent. The court used its discretion in holding that the evidence was admissible as the wife had no other options other than reverting to the use of this form of evidence.

In Guzniczak & Rogala (2017) Fam CA 758, the Judge held the husband’s recordings of the wife without her consent prior to their separation was admissable as evidence however the Judge ruled negatively against the husband in respect of the content of the recordings holding that the husband had set up traps in respect of the wife.

In Coulter & Coulter (No. 2) [2019] FCCA 1290, the mother was successful in having an illegally obtained recording of the father, made during the handover of the two children, admitted as evidence into the Court.Using a video recording device, the mother captured the discussion between herself and the father without his knowledge or consent. The Court ruled that the video recordings were admissible because the mother made them in the context of a relationship which involved family violence and where protection was sought. In contrast to these recordings, other recordings of private telephone discussions between the father and the children, without either party’s knowledge were dismissed as inadmissible as they were held to have breached the father’s privacy.

In Gin & Hing (2019) Fam CA 779 the father relied on the transcription of various mobile calls and skype conversations, which related to parenting issues the recordings of which were made without the consent of the persons recorded. The Court held that despite the mother’s objection to the admissibility of the evidence on the grounds of it being unfairly prejudicial to her, the transcriptions were allowed. This was because the probative value of it outweighed any prejudice. The best interests of the child were in issue and the Judge held that the evidence assisted in the determination of the matter.

In Nagel v Clay (2020) FamCA 326, the mother’s Affidavit at trial made reference to digital recordings which related to parenting orders. These recordings were submitted to the single expert in the case for the preparation of an expert report. The father objected to the recordings calling for a substitute single expert to be appointed and for the recordings to be struck out as inadmissible evidence. The Court, exercising its discretion with respect to the electronic evidence, relied on section 6ZX(2) of the Family Law Act and held that the recordings were to be excluded due to their low probative value and the mother’s non-disclosure of the existence of the recordings under Rule 13.14 of the Family Law Rules.

Support is given to the use of electronic forms of evidence by precedent and law, however the facts of each case will determine the outcome as to whether or not weight can be given to it and whether in fact it can be used.

Contact us

If you would like more information on how to prepare evidence for your case and how the Family Law Team at Genesis Edge Law Group can assist you in your matter, please do not hesitate to contact us on 1300 559 888 or fill out the enquiry form here.