Using secret audio recordings as evidence

The Greek Goddess of Justice, known as Themis.
The Greek Goddess of Justice, known as Themis. Rae Wilson

Colin, aged 77 and Jane, aged 33 have a three-year-old daughter.

Their relationship breaks-down and Jane files an application, seeking property settlement orders under the Family Law Act.

Colin concedes that there was an 18-month sexual relationship between them but says it ended in 2014. He says that the sexual relationship did not constitute a "de facto relationship" claiming that they never had a relationship as a "couple living together on a genuine domestic basis".

Accordingly, Colin claims that the court has no jurisdiction to hear the matter and asks the court to dismiss Jane's application.

Jane produces audio recordings as evidence of the alleged de facto relationship. The recordings were obtained without Colin's knowledge. Colin claims that the recordings were illegally obtained and that they should not be admitted as evidence.

The court notes that the use of a listening device can constitute an offence under the Surveillance Devices Act unless the recording of the conversation is "reasonably necessary for the protection of lawful interests".

The offence is punishable by imprisonment.

The court found that Jane making the recording was in fact, "reasonably necessary" and in the interests of a fair trial, admitted the evidence.

Jane was ordered to prepare a transcript of no more than 6 recordings and to file an affidavit setting out the circumstances surrounding the recording.

The court also made an order, for "more abundant precaution", protecting Jane from criminal prosecution in relation to the making of the recording.

The court made it clear that although the recording would be admitted as evidence, the weight that would be attributed to the evidence was another matter that would be considered in due course.

If you would like Manny to address a particular legal issue, send your request to or call him on (02) 6648 7487.

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