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Secretly Recording Your Spouse’s Conversations

Secretly recording your spouse’s conversation where there is family violence is an issue that has been discussed widely.  When family violence, child abuse and neglect takes place behind closed doors without any witnesses being present, it is very difficult to provide evidence to the family courts when it is illegal to secretly record conversations in some instances.  However, with increasing public awareness and media attention, the difficulties of obtaining evidence behind closed doors is now being recognised by the family courts.

In the New South Wales case of Janssen & Janssen the court noted on the facts before them that, “it is notoriously difficult to obtain evidence of family violence which takes place behind closed doors”.  The court stated that the decision to admit the secret recordings in this case were based on the particular facts of the case and that the father had maintained a charming public face but had engaged in conduct that alleged to have constituted family violence under the Family Law Act 1975 (Cth).

The Independent Children’s Lawyer (ICL) in this case submitted that in secretly recording your spouse’s conversations would also assist in determining the parenting abilities of the primary carer which may have been compromised as a result of the content and tone of the communication of the father.  It is not only what was said in the recordings, but also how it was said.

The Family Court said that evidence from secretly recording your spouse’s conversation in relation to family violence matters will have to be:

  1. established clearly;
  2. matters of opinion put in appropriate context and given appropriate weight;
  3. dependant upon who was expressing the opinion and on what basis; and
  4. the establishment of the necessary background facts.

Please note that the law in Queensland in relation to privacy and the recording of conversations is different from the law in New South Wales and other states:

  • it is illegal to record a telephone call with a device physically attached to the telephone;
  • it is illegal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
  • it is legal for a telephone call to be secretly recorded by an external device by a person who is a party to the conversation; and
  • it is legal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
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family violence

Family Advocacy and Support Services

Family Advocacy and Support Services (FASS) – Legal Aid Qld

A free service for parents affected by family violence is now available in the Federal Circuit Court and Family Court of Australia. The service includes social support and duty lawyer services.

Duty Lawyers and family violence workers will be available at Court on days when there is a Duty List. Services provided will include legal advice, court support, safety planning, legal information and referrals. The Duty Lawyer may also appear in court on behalf of an unrepresented client or assist with negotiations with the other party.

The type of assistance will be determined on a case by case basis depending on the circumstances of the client, Legal Aid guidelines and availability of resources.

This is provided by the Family Advocacy and Support Services (FASS) – Legal Aid Qld.

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What does the Family Court look at when assessing your matter?

The Hon. D Bryant, Chief Justice, Family Court of Australia said it doesn’t matter who their parents are as long as the children are in a stable, loving and caring relationship in which they are brought up.
http://www.theaustralian.com.au/news/nation/ssm-family-court-chief-justice-diana-bryants-plea-for-kids/news-story/b76fff682d5f998ddb958ce928c8f97d

Family Court judge enters same-sex debate

Family Court Chief Justice Diana Bryant in Melbourne yesterday. Picture: Aaron Francis
Family Court Chief Justice Diana Bryant in Melbourne yesterday. Picture: Aaron Francis
  • The Australian

Children need to be raised in an environment where they are ­surrounded by happy, loving ­relationships, and it does not ­matter whether their parents are of the same sex or heterosexual, says the nation’s most senior ­family law judge.

Family Court Chief Justice Diana Bryant, who has presided over many hundreds of disputes involving broken families in her 17-year career as a family law judge, said what children needed most was to be surrounded by ­stable, functional relationships. “What you want for children is a stable, loving and ­caring relationship in which they are brought up,” she told The Australian. “It ­really doesn’t matter who their parents are as long as they have all of those aspects, and if they do, there is absolutely no reason why there should be any discrimination in my view.

“What you don’t want children to have is to be living in a confected, dysfunctional relationship — whether it is two parents of the same sex, or two heterosexual people.”

In a rare intervention in a key debate, Chief Justice Bryant said same-sex marriage would have no effect on the way the Family Law Act applied to children. This is ­because the legislation applies in exactly the same way to married and de facto couples and their children, regardless of whether they are in a heterosexual or same-sex relationship.

“The Act applies equally to children of same-sex couples as it does to children of heterosexual couples,” Chief Justice Bryant said. “Apart from divorce itself, if the Marriage Act was changed it is not going to make any difference to the way in which the Act ­applies.”

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Transforming the family law system

The first review of the family law system since 1976 is currently taking place.  This is great news for families who can’t afford the high costs of legal representation in the Family Courts.

There is longstanding recognition that the current family law system is failing many families, with protracted litigation, huge financial costs and delays.  The current family law system as it stands today mostly causes more anguish and grief for families, exacerbating parental conflict rather than providing a safe environment where they can achieve a fair and timely outcome to co-parent.

A new statutory authority has been designed to offer self-represented litigants a process that offers more flexibility and an inquisitorial alternative to the litigious approach.  Families will be helped by a panel of members who are experts in family law, family dispute resolution, family violence, psychology, mental health and child development.  Families won’t be able to have a solicitor attend with him without special leave of the court.  It won’t be necessary to have a solicitor as the panel will be well equipped to assist you from a legal perspective.

It is understood that the during the trial period of this new process, families can take advantage of the panel at no cost.

If you would like to know more about the review of the family law system and how it can help you, please contact our legal drafter, Melita Lloyd.

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