I Recorded my Son Crying That he Didn’t Want to go to my ex. Can I use That in Court?



This might seem like a good idea so you can show the judge what a struggle you are having.

However, the Family Courts are not there to take sides. They are trying to work out what is best for the children.

In certain circumstances, this may mean that the recordings will be allowed in Court as evidence if a child’s safety is at risk.

However, it is important to understand the law and make sure you are not leaving yourself open to criminal sanction.

What is the law?

In New South Wales the use of devices is governed by the Surveillance Devices Act 2007 (NSW) (“the Act”) as well as Telecommunications (Interception and Access) Act 1979 (Cth).

The Act states that it is a punishable offence which can result in up to five years’ imprisonment and/or $55,000 to install or use a listening device to record or monitor a conversation without that person’s permission.

With the use of smartphones, Instagram and Facebook it is becoming increasingly difficult to monitor who and what is being recorded.

A smartphone can be a “listening device” so you could be open to a charge if you use your mobile phone to record incidents such as changeovers.

There are exceptions in the Act such as Police Surveillance; if all the parties to the conversation consent to the recording; if it is reasonably necessary to protect the lawful interests of the “principal party”; and/or it is not made in order to publish the conversation.

The “principal party” refers to the person by or to whom words are spoken in the course of the conversation so in the Family Law context, it is usually your ex-partner.

What Happens in Court

If your actions fit into one of the exceptions, you will still have to prove that the recording is admissible in Court.

To be admissible, the recording must be relevant and/or in the public interest. Relevance and admissibility are defined in the Evidence Act 1995(Cth). Although there is some lenience in child-related proceedings about evidence, the Court will still need to weigh the recordings’ importance against any illegal circumstances of its creation.

If the recording has been illegally obtained as defined by the Act the judge has a discretion to allow it as evidence if it is important to prove a fact or circumstance, such as any family violence.

Recordings in Family Court

You may think that recording your ex at changeover and your child’s reaction, will prove that he or she is not acting in the child’s best interests.

However, there are a number of provisions in the Family Law Act 1975 (Cth) to protect privacy and the identity of the child which preclude the publication of recordings on smartphones or anything to do with the Family Law proceedings.

Apprehended Domestic Violence Order

The Crimes (Domestic and Personal Violence) Act 2007 (NSW) was promulgated to protect family members against violence in domestic situations where it may be difficult to prove allegations. Recordings may assist the Court in these circumstances. The Judge will then admit the recordings in these limited circumstances.

As Justice McClelland said in a 2016 case, citing Justice Hannam, that “It is notoriously difficult to obtain evidence of family violence which takes place behind closed doors”.

However, the Family Courts must view all cases with the best interests of the children as the paramount consideration. The extremes that parents may have to go to in order to make these recordings may well involve the children in the conflict which is contrary to their best interests and the Family Law Act.

When distraught children are part of the recording, the Court may question the parent’s judgment in making the recording especially if it is only to show how difficult it is to get the child into the car.

Will my Recording be admitted into Evidence?

Although the Family Courts are reluctant to allow illegally obtained recordings, they may use their discretion to allow the recording if there is a question of a child’s safety and it is relevant to the issues before the Court about whether the child spends time with a parent if there is any risk to that child.

Next Steps

Family Law proceedings are stressful when you are trying to secure a safe environment for your child or children. It is important to try to be objective and work out what is in the children’s best interests.

The Court will not view favourably recordings that directly involve the children in the conflict and the evidence will not be admitted in Court.

The focus is never about winning against your ex but about how you can work together to give your children the best future and move on with your own lives.

We can assist you by advising about whether such recordings are admissible and whether there may be a more appropriate way to present your case.

Please do not hesitate to contact us if you are experiencing the conflict of a broken relationship.

Note: This is not legal advice and is provided for information only.