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While parenting after separation is a difficult path to navigate, it is not made easier in the brave new world of technology. Where people are able to have infrared security cameras with sound in their homes, record conversations with ease on their phones, a simple facetime chat post-separation with a child becomes fraught with traps.

In New South Wales, it is illegal to record or monitor a private conversation under the Surveillance Devices Act 2007 (NSW). A penalty in the form of a fine or even imprisonment exists. In addition, communications obtained by these illegal means are excluded from use in family law proceedings under the Evidence Act. However, there are exceptions to allow such illegally obtained recordings into proceedings. While there are several exceptions, we will focus on the probative nature exception.

In Latham & Latham [2008], the Court found recordings made over a number of years by the father of the mother interacting with the children were highly probative to the allegations against the mother’s parental ability. The father argued that recording must be accepted into evidence because they supported his allegations about the mother. Previously, the Court had noted that some of the allegations the father made in his affidavit material “if correctly reported, would paint the mother as a seriously bad child abuser.” While the mother submitted that the recordings were only segments and not the full conversations, the Court found that they were vital to determining the best interests of the child. As the matter was only parenting, the Court found that the recordings could not be ignored when looking at the safety and prevention of harm to the child.

The focus for parents therefore should not be on recording each other, but on focusing on the welfare of their child.

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Family law situations can be complex and sometimes they can involve serious issues.  Information outlined is proposed to provide general guidance only. Due to the seriousness of legal matters as well as the uniqueness of your individual situation, professional advice should be sought. For advice, please contact one of our Family Lawyers.