There has been a recent trend among litigants to secretly record themselves in conversations with their ex-partners in an attempt to gather evidence against them during Court proceedings.
It is our experience that any such behaviour rarely pays off and is often frowned upon by the Court.
Judge Coker was reported to have said in a recent judgment by the Federal Circuit Court in February 2013, that the recording held little probative value and reflected worse on the person who made it.
“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 evidence/gathering exercise and one that, in my view at least… gives rise to serious concerns as to the behaviour of the party who records such evidence”.
In a 2008 decision, Latham v Latham, the Family Court allowed a father to tender recordings of the Mother that “painted her as a seriously bad child abuser” because the benefits of the evidence outweighed the way it was obtained.
In another recent decision by the Family Court, the Court noted that the party who knew the recording was being made was likely to be on their best behaviour but the behaviour of the other person could not be taken as typical, given the emotional nature of marital disputes, especially those involving children.
Therefore, the admissibility of such evidence taken by parties during proceedings is extremely questionable and could result in the Court taking an unfavourable view of the party who knew the recording was being made.
At Taylor & Scott “ We Care For You.”