In the case of Shelbourne & Shelbourne [2017] FamCA 761, the Father had recorded several videos of the Mother committing acts of family violence using his mobile phone. At first instance, his solicitors were successful in tendering the video recordings. This finding was made notwithstanding that ordinarily it is an offence to record a private conversation unless an exception applies.

Court Analysis

His Honour Justice Rees found that in circumstances of family violence being a central issue to the case, whereby the parties were making counter allegations of violence and threats of violence, the recordings made by the Father of the Mother’s behaviour came within the exception provided by s 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW).

In reaching this conclusion, his Honour considered section 135 of the Evidence Act 1995 (Cth) which provides the Court discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.

In this case it was found that evidence is not unfairly prejudicial simply because it may damage the case of one party (being the Mother in this case) and support the case of the other. The Court determined that the recordings were admissible and admitted them into evidence over the objection of the Mother.

Whilst this case was determined in New South Wales and the applicable legislation being applied by the Family Court was New South Wales legislation, being the Surveillance Devices Act 2007 (NSW), the same legal arguments may apply in the other States and Territories around the country. The Surveillance Devices Act 1999 (Vic) has an almost identical section which may be applied by the Court in the same manner as that seen in the case of Shelbourne.

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