A party to family law proceedings sometimes, with or without the knowledge of the other party, records the pair’s interactions at changeover of the children and seeks to produce the recording as evidence in his or her family law matter. These types of cases often involve significant acrimony between the parties and/or family violence.
In the 2020 case of Nagel v Hay His Honour Justice Harper had to decide whether to use the Court’s discretion to exclude video recordings under section 69ZX(2)(g) and (h) of the Family Law Act.
Nagel v Hay – the facts
The case of Nagel v Hay relates to both parenting and property proceedings and there had been a significant history of litigation in the case when this issue arose. The parenting proceedings related to three children born in 2008, 2011 and 2013. Both the mother and father filed trial Affidavits on 20 December 2019. The mother’s trial Affidavit made reference to a bundle of exhibited documents, including digital recordings and her lawyers submitted the material to a single expert for the purpose of preparation of an expert family report. The mother stated that she made the recordings as she believed that they would assist her to obtain the parenting orders that she wanted.
On 9 January 2020, the father attended upon the single expert family report writer. The previous day the father’s lawyers had requested that the expert refrain from reviewing the recordings until the father had had the opportunity to review it himself, however, the expert had already reviewed the material at the time of the request.
On 12 February 2020, the father’s lawyers objected to the recordings and proposed that the expert be discharged as single expert and another single expert be appointed in her place. On 13 February 2020, the father filed an Application in a Case seeking that the paragraphs in the mother’s Affidavit referred to in the recordings be struck out. He also sought the discharge of the single expert and an appointment of an alternate expert.
Admissability of digital recordings in the Family Court
The Court considered the admissibility of the recordings and in doing so it considered their relevance. In assessing the 8 hour footage the Court found that large sections of it were inadmissible on the basis of irrelevance. It found that some short incidents, which could be said to portray the conduct of the father unfavourably, were relevant and therefore admissable.
The Court’s discretion to exclude or limit evidence under section 69ZX(2) of the Family Law Act
After the Court considered the relevance of the digital recordings, it considered the probative of the value of the evidence and found that the relevant sections of the recordings had low probative value as well as low importance in the proceedings. Prior to filing her trial Affidavit the mother had not disclosed the existence of the recordings under Rule 13.14 of the Family Law Rules and the Court considered its discretion to exclude the recordings under Section 69ZX(2) of the Family Law Act in light of the mother’s breach of the Rules.
Ultimately, the Court in Nagel v Hay used its discretion to exclude the digital recordings from the trial and took into account factors that included the best interests of the children and the low importance and probative value of the recordings when exercising its discretion. The parties may therefore believe that such recordings will have a significant impact on the outcome of the case whereas the Court may not necessarily share that view.
Call one of our experienced family lawyers today on 8393 0144 to find out more about when digital recordings can be used as evidence in the Family Court or Federal Circuit Court.