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Reliance upon a recorded conversation obtained without the knowledge of one of the parties in a family law matter.

An instance when statements made in a recording without the knowledge of the person making the statement were permitted to be introduced into evidence in a case in the Federal Circuit Court.


The material contained in this document is general in nature and is designed to provide you with some information but should be read in association with legal advice given to you.

The reader should not rely or act on this information without seeking legal advice specific to their circumstances.


In a recent decision in the Federal Circuit Court (23 June 2017) Judge Altobelli had something interesting to say about the capacity of a party to rely upon a recorded conversation in a case where the party who recorded the conversation was seeking to establish that a de facto relationship existed her and another person.

In that case, the applicant was trying to prove that she and the respondent were involved in a de facto relationship whereas the respondent only conceded that theirs was of a sexual relationship. They had a child together.

An application was made during the course of the proceedings to enable the reliance upon the evidence of an audio recording of conversations between her and the respondent that she asserted was germane to the issues before the court. There was no dispute, that the recording was made without the knowledge of the respondent.

At issue was whether the use of that recording was prohibited under the provisions of the Surveillance Devices Act 2007 (NSW).

Part of Section 7 of that Act states (by way of précis) that a person must not use a listening device to record a private conversation to which that person is a party, unless that action is reasonably necessary for the protection of the lawful interests of the person making the recording.

It must be pointed out that there may be some variation between the legislation of different States and Territories of Australia, and extreme care must be taken by the person using the listening device prior to attempting to do so, and anybody seeking to rely upon this case must first obtain independent legal advice, and that person should not rely upon what I am saying as legal advice for such action.

Judge Altobelli said that doing the best he could, and by taking the applicant’s case at its highest, the lawful interest that the applicant was seeking to protect was her belief in a certain status of the relationship with the respondent in which she bore his daughter and during which she maintained that he said and did things that led her to believe that their relationship had a certain status which enjoyed a certain protection at law.

What must be also made very clear is that all the judge was doing was allowing the material recorded to be put before the court and he was not making any comment on the weight that would be given to the evidence.

In other words, the evidence might be admissible but it may not have much weight in establishing that the de facto relationship that the applicant was trying to prove was established by what was said, or that the exercise of recording the statement may not assist in proving that the parties were in a defacto relationship.

Liability limited by a scheme approved under professional standards legislation”

The contents of this document are not intended to create any legal relationship between the author and the reader.

The material contained herein is designed to provide you (the reader) with some important but general information and should be read in association with legal advice given to you.

You should not rely or act on this information without seeking legal advice specific to your circumstances.

Cecil Black

04 August 2017


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