The Ex-Files: Secret recordings and hidden cams trained on ex-partners may not be silver bullet in court

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Hidden cameras and recordings: the risks of gathering evidence in a separation. Photo / 123rf
Jeremy Sutton is a barrister and family lawyer at Bastion Chambers.
OPINION
My ex-partner is verbally abusive, and I have been recording our conversations. Will this help me if we go to court?

Q: My
partner and I are going through a separation. We are still living together while we sort things out. I am very unhappy with her behaviour. She has cheated on me, and has been very abusive. I have been recording many of our conversations without her knowledge, and I have been taking videos of some of our interactions. Will it be useful before a judge if the matter ends up in the Family Court? I also have a hidden camera in the sitting room. Is this a good idea?

A: Clients frequently walk into their lawyer’s office holding what they believe to be key evidence against their soon-to-be ex-spouse. The client explains that they have secretly recorded their spouse and that the recording highlights their ex-spouse’s abusive behaviour, their threats, or even their dissipation of assets, and want the recording to be presented in court. With everyone having access to a camera phone, this is becoming more frequent.
Should you put the recording before the court?
To decide this, we need to consider a two-stage test. First, is the evidence relevant to the case before the court, and is it admissible? Second, is the evidence prejudicial or will it needlessly prolong the proceedings? If that is the case, the judge may decide not to hear the recordings.
Did the person know they were being recorded? Even if the person knew they were being recorded, many judges will look negatively on someone who records their interactions with another person, whether this is done legally or not.
Care of children cases often depend on the ability of the parents to effectively communicate, and one-party recording the other may erode the judge’s faith that the person recording is a capable co-parent.
Divorcing parties always need to be mindful of the consequences of their actions, as recordings can sometimes backfire, and may not always get a sympathetic ear from the judge. The judge may look at the context of the recording, and any events that preceded the recording. For example one person may have been violent or provoked the other person before starting the recording. In many instances, the court may focus less on the content of the recordings and more on the act of recording.
Always be sure to consult a lawyer before considering recording your current or ex-partner.
The general rule is you cannot record someone without them knowing, as it could be a breach of privacy. There will be situations where a recording is warranted, so it is best to obtain legal advice first.
We expect couples to operate in an environment of trust and confidence. If parties are recording each other all the time and threatening to put such recordings before the court, the actions are unhelpful to their relationship and the openness in that relationship.
Resources
I would suggest reviewing the Privacy Commissioner website. The party being recorded could make a complaint to the Privacy Commissioner.
The Harmful Digital Communications Act aims to prevent or reduce the impact of digital communications. Netsafe is the agency to take complaints of harmful digital communications and informs people about what remedies can be taken.
You could find yourself with a complaint made against you to Netsafe.
My experience has been that judges are generally reluctant to accept the recordings as evidence without it being particularly important.
For example, the revelation that one party has had an affair is not particularly significant in relationship property or care of children matters because we have a no-fault divorce system in New Zealand.
Recordings may be admissible but please be aware this may not be the silver bullet you are looking for in your separation.
Camera in the sitting room
It is very likely the judge will not be impressed. This is a breach of privacy.
Summary
It is now commonplace for one party in a separation to record or take videos to bolster their case.
Lawyers need to consider and advise whether such possible evidence is going to be admissible and worthwhile.
There needs to be a filter of such evidence and in the opinion of judges such evidence will be of limited value. You need to take official and personal advice before you submit this material.
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