QLD What Kind of Evidence is Permissable in Court?

[new dad]

Hi all,

I understand that voice recordings are problematic as evidence but I was wondering;

If the other party is aware they are being recorded and it clearly states this at the start of the recording, is this permissible as evidence?

And if the judge allows one party to submit a recording taken without the knowledge of the other is the judge obligated (or likely) to permit all evidence of a similar nature?

Thanks in advance

 

[Lennon]

Hi New Dad,

Each State has different laws about the lawfulness of recording conversations. For example in Queensland it is lawful to record a conversation that you are a party to even if the other party does not know (this is not the same elsewhere).

As to whether a recorded conversation will be admitted as evidence, it needs to be relevant and admissible. If the conversation was unlawfully recorded that will be a factor weighing against admission (although an unlawfully recorded conversation can still be admitted at the Judge's discretion, particularly if it is highly relevant).

If the conversation is lawfully recorded, the conversation would still need to be relevant in order for the recording to be admitted (and must not be inadmissible for some other reason ie it can't be a privileged conversation with a lawyer or a without prejudice conversation).

The Judge is required to decide whether to admit each piece of evidence individually, so admitting one recording does not mean that he is obligated or more likely to admit all similar evidence. He still has to consider whether the evidence is relevant and admissible before accepting it into evidence.

This is not legal advice

 

[new dad]

Thanks Lennon for the information, much appreciated.

 

[AllForHer]

In family law, best practice is to submit a transcript of the recording in your affidavit, rather than the recording itself. If the other party disputes the transcript, then you advise the judge that you can produce the original recording from which the transcript was taken if it pleases the Court.

It is not often advisable to submit the recording itself in the first instance. Rarely do they paint either party in a good light.

 

[new dad]

Thanks AllForHer, would you submit an entire transcript, or would you paraphrase the important parts ensuring to give an accurate representation?

 

[AllForHer]

There is no real rule for this, but my personal practice was to provide a brief context of the discussion, then transcribe the relevant parts word for word.

For example, in a DVO matter, there was a 20-minute recording between the respondent and the aggrieved in which the respondent threatened to make false allegations of violence to police if the aggrieved didn't do as asked. That part of the conversation was maybe a minute long, so the affidavit essentially said when the discussion happened, how it came to be that they were in discussion, and then a precise transcription of what was said in that minute long period. As a rough idea:

1. On 1 January 2018 at approximately 5pm, I attended the respondent's residence to collect the child X. While there, the respondent and I entered into a discussion in which the respondent sought to reconcile our former relationship. I declined and the respondent seemed to become angry, raising her voice and swearing. During the discussion, the following exchange took place:

A: My responsibility is to X, not you.
R: Yeah? Well, you won't even be seeing X after I go to the police.
A: And do what? Lie?
R: I'll tell them you're violent and I'm scared for her welfare-
A: You would lie like that, you would hurt X like that, just because I don't want to be with you?
R: Well, you're apparently seeing some other girl, I'm not going to let X around you and some sl*t.

You get the idea. Does this help?

 

[new dad]

hi AllForHer, yep that helps alot, thanks for explaining this to me, much appreciated

 

[sammy01]

I suspect you're looking at this the wrong way...

What might be in the phone conversations that might have any bearing on your case?

 

[new dad]

For example, if someone was claiming to be afraid of someone else but the conversations showed otherwise?

 

[sammy01]

Waste of time...

You're playing the wrong game.... The game you're playing is called 'he said, she said.

The game you need to play is 'best interest of the child'.

Mate, you can go and do a great job in court of proving the ex is a liar, hypochondriac, narcissist, psychogenic, Nazi. Big deal. So what? And in fact, in doing so, you're actually hurting your cause. Get a nice cuppa tea and sit down because I want you to read this over a few times until it actually sinks in...

Your case is that you're a great dad and you're prepared to work with mum when all this settles down. You are child focused, your only concern is raising the child you share with mum and you want to do it in a way that 'is in the best interest of the child'. That is your only concern. Nothing else.

So if you want record phone calls to prove she is a liar, what you're doing is telling the judge that you're not child focused, your focus is on proving to the world that the mum is a twit.... Have a good read of the family law legislation. It does not have a twit clause in there anywhere. It has 'best interest of the child'.

So you go to court intent on proving that mum is a twit and you (kinda) succeed.... Well all you have actually done is shown the magistrate that there is lots of conflict between you and mum... Mum hates you and you are intent on proving mum is a twit. OK great - but how does that get you more time with the child? how does that relate to the child? It doesn't! Nope, I'm wrong it does, but in a negative way and in fact it hurts your case....

The ex wants conflict, lots of it... Why? Well then the magistrate can say that as parents you guys are dysfunctional, there is too much conflict and the child needs to be protected from the conflict (how is your cuppa tea going?).

So how does the magistrate ensure that the child is protected from the conflict between liar mum and a dad who is intent of focusing on proving mum is a liar? The kid stays with one parent... Guess who that is gonna be...

This ain't TV - Forget the 'truth' and 'proving' her wrong...

Watch this -

Great acting - but not real life court...

Final thought from me for today - Mate I get it, I really do...Not legal advice right now - just life experience. You need to learn how to become Teflon.

If you let her BS screw with your life, if you spend the majority of your time walking about stewing on the fact that she has lied and worse if you spend your time trying to prove those lies you will lose... Even IF you manage to show her lies for what they are... (how is your cuppa - might be time to refill)...

So I'm an English teacher - love my job, but it is holidays... So I'm gonna give you some homework... Might give you a bit of a different perspective on how to approach this madness...
have a read

If— by Rudyard Kipling