The information provided below is general in nature and should not be relied upon legal advice. You should call 03 5445 1000 and speak to a lawyer at OFRM about your particular circumstances.

Janssen & Janssen [2016] FamCA 345

It is notoriously difficult for victims of family violence to obtain evidence of such occurrences, given that family violence usually occurs behind closed doors when only the perpetrator and the victim are present and there are no witnesses.

However, a recent decision by the Family Court of Australia has now made it potentially easier for family violence victims to be able to prove incidences of family violence in court proceedings.

In the case of Janssen & Janssen [2016] FamCA 345, the Family Law Court allowed both the voice recordings of conversations between the parties and the transcript of these recordings to be admitted into evidence. It was alleged that these secretly recorded conversations recorded instances of serious family violence between the Father and Mother.

The Court decided to allow the voice recordings of the conversations into evidence as it was not only important what was said during the conversations, but also the tone in which it was said. This could not be obtained through the transcript alone.

This decision is particularly interesting, given that in New South Wales in which the recording took place, it is ordinarily unlawful to record private conversations without the consent of the parties involved in the conversation unless it is done to “protect the lawful interests of the principal party to the conversation who consented to the use of the device”. The Court found that the secret recording of the conversations was reasonably necessary to protect the Mother’s lawful interests given that it was so difficult to prove her allegations of family violence otherwise.

The Court considered whether allowing the secret tape recordings into evidence could open the ‘flood gates’ for people in relationships that are experiencing difficulties to decide to record their partners or spouses without their knowledge or consent. The Court found that given it degree of difficulty in proving family violence has taken place in a relationship, particularly when the perpetrator has maintained a charming public face and there were no witnesses to the violence, it was necessary to allow the evidence as there may be no other way to prove violence has occurred.

There were also concerns that the conversations can be triggered or induced by the recording party such that the other party said things in a tone which would not have otherwise been the case. Additionally there were concerns that the Mother could manipulate the recordings and determine which parts of the conversation were recorded. The Court answered these concerns by noting that the parties would be subject to cross examination and that the parties could argue how much weight needed to be given to these recorded conversations.

Therefore, it appears that the Court following this decision may accept secretly recorded conversations However, the Court will continue to treat such recordings like any other piece of evidence and so they will be open to scrutiny by the other party and the Court itself around the weight that the recordings should have on the case at hand.

It is important to note that depending on what Australian State you are in when you record a conversation, you could be committing a criminal offence by recording a conversation without the other parties consent. Therefore you should be very wary before you decide to take this step and seek legal advice.