Beware of illegal Covert Surveillance

When is Covert Surveillance illegal and when does it serve a Legitimate Forensic Purpose?

Have you ever wanted to record a phone conversation as evidence for a family law dispute. How about discretely filming a video of a meeting of a spouse meeting someone else? What about recording what your children say when you are not there? Take care before you press record as you may be in breach of the law. It all comes down to consent.

Some legal court cases throw up cross-jurisdictional issues in which Federal Courts need to have regard to State Laws and vice versa. The Courts don’t operate independently. A breach of an Australian Federal law may have impact on a State based Family Law matter.

A recent decision (5 August 2010) of Justice Fowler in the Family Court of Australia at Sydney considered the application of the Surveillance Devices Act 2007 (NSW) and its application in a case in respect of children’s “independent expert”. The starting point for His Honour’s determination was that a mother had procured, in contravention of the provisions of the Surveillance Devices Act 2007, a recording of the interviews between the Court appointed independent expert and the children of the marriage.

Section 7 of this Act prohibits a person from installing using or causing to be used a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party. The penalty is 100 penalty units or 5 years imprisonment or both. There are some limited exceptions but principally a party must consent to the listening device. No such consent was provided by the Independent Expert.

His Honour, Justice Fowler, had a case before him which had already run for 8 days. A transcript and copy of the recording were  produced to the Court by the mother in response to a Notice to Produce. His Honour ordered that it was in the interests of justice, the public (who expect the Court system to act efficiently) and also in the interests of the parties that a copy of this transcript and recording be provided to the Independent Children’s Expert before she was cross-examined.

Comment from Mark Streeter Sydney Family Law Lawyer

This case illustrates an application of the principles of cross jurisdictional issues in the Family Court.

Anyone contemplating using Surveillance Devices (audio, video or data) should consider the law regulating this area and ensure they act lawfully. There remains the possibility the mother could face criminal penalties for potential breaches of the Federal Surveillance Devices Act regardless of what is decided in the Family Law Court.

Written by Mark Streeter

The Director of Streeterlaw, Mark has been practicing Law since 1994. He has attained his Masters of Law in 1999 and in 2006 was awarded his Specialist Accreditation in Commercial Litigation. Mark is a member of ARITA, a graduate of the AICD and a member of AICM. A member of STEP, Mark enjoys working in the area of Wills and Estates. In 2020 Mark is the Chair of STEP NSW.

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