It is not uncommon for couples when separating to engage in evidence gathering exercises. Parties will often use Facebook and other social media such as Twitter or Google+ in order to gather information such as the location of the other party, their habits, the identity of associates, current relationship status and other activities. On occasion parties will ‘step it up a notch’ and hire an investigator, or secretly record or tape conversations or interactions with the other party. The ultimate goal of these endeavours is generally to use them in court as evidence to support a claim. We consider steps of this nature to be extreme, and often recommended only in very unique cases. The very act of these investigations can often be counter-productive in parenting cases being utilised by the Court as evidence of a parent’s failure to positively support the other parent in their interaction with a child.

It is important to be aware that often potential “evidence” will not be relevant or admissible, no matter how ‘juicy’ it may be. Furthermore, some evidence gathering techniques, whilst producing evidence that is potentially relevant, may do so in a way that is illegal.

In a current case in New South Wales, the Family Court of Australia heard an application by one party requesting that audio recordings and photographs be provided to an expert family report writer in the proceedings. In that case the photographs and recordings appeared to indicate violent behaviour by one party towards both the other parent and a child prior to separation. The other party contended that the tapes only provided parts of the conversation and gave a misleading impression of events surrounding the comments made and behaviour on the tapes.

One issue with the recordings was that they were, prima facie, illegally obtained. Legislation enacted in New South Wales rendered the recordings illegal, and also made the publication of the recordings illegal. Ultimately the Court determined that it was inappropriate to admit the recordings and photographs to be put before the Family Report writer. A number of reasons, including the prima facie illegality of the recordings and the yet to be determined weight, integrity and admissibility of the material were behind the decision. It will be determined at a later date whether the material is admissible, in what manner is will be used and what weight will be given to it in the proceedings that follow.

We would encourage you to be aware of the law that impacts on your evidence gathering activities, and be conscious that the very act of collecting evidence may not reflect positively on you.

This isn’t to say however, that all materials gathered by parties are a useless or risky endeavour. In many situations information gathered by parties can be helpful in resolving the conflict before the Court. Alternatively information gathered may give rise to one party seeking further information elsewhere that may assist the Court in making a decision. For example, a Facebook post that states that one party was somewhere other than they claim to be or with someone they shouldn’t have been with, in violation of a parenting order, may or may not be enough evidence in itself, but could give rise to further investigations being undertaken to determine and gather admissible evidence.

The best person to advise you on situations such as these, and other family court matters, is a family law specialist. Best Wilson Buckley Toowoomba and Brisbane are family lawyers who offer specialist knowledge, compassion and commitment in a timely manner.

Call Best Wilson Buckley Toowoomba on (07) 4639 0000 or Best Wilson Buckley Brisbane on (07) 3210 0281.