Covert Family Violence Recordings Admitted: Court Says Protection From Family Violence Can Be a Lawful Interest
In Kunkle & Suss (No 2) [2026] FedCFamC1F 346, Stewart J admitted a series of audio recordings made by the mother for use in parenting proceedings. The father did not expressly consent to being recorded, and the Court was not satisfied that his apparent awareness of some recordings amounted to implied consent. However, the Court accepted, on a prima facie basis, that the recordings were reasonably necessary for the mother’s protection in the context of alleged family violence. The recordings were therefore admitted under the exception in the Surveillance Devices Act 2016 (SA), and Stewart J added that, even if that conclusion were wrong, the recordings would have been admitted under s 138 of the Evidence Act 1995 (Cth).
🧩 Facts and Issues
Facts:
The matter came before the Court during parenting proceedings involving one child, X, born in 2018. The mother sought to rely on a number of audio recordings and transcripts said to support her allegations of family violence. The recordings were made covertly, or at least treated by the Court as covert on a prima facie basis.
The father did not expressly consent to the recordings. Some later recordings suggested he may have known he was being recorded, because he spoke as though he was aware of it and expressed his view that the recordings would not be admissible in Court. Stewart J considered whether that awareness could amount to implied consent, but found that it did not, at least on the facts of this case.
The mother’s position was that the recordings were made because they were necessary for her protection from family violence. The father largely denied the allegations or placed a different context around them. The Court treated the matter as a discrete evidentiary hearing — effectively a voir dire — about admissibility, not a final determination of the truth of the family violence allegations.
The recordings admitted included 12 recordings dated between 11 June 2022 and 13 July 2022, ranging from about two and a half minutes to more than one hour. The Court also made procedural orders re-listing the final hearing for 13 August 2025, giving the parties permission to provide the recordings and transcripts to the family report psychologist, and making interim parenting orders.
Issues:
- Were the recordings prima facie contrary to the Surveillance Devices Act 2016 (SA)?
- Did the father expressly or impliedly consent to being recorded?
- Were the recordings reasonably necessary for the protection of the mother’s lawful interests?
- Should the recordings be admitted despite their covert nature?
- If the recordings were improperly obtained, should they nevertheless be admitted under s 138 of the Evidence Act?
- How should the Court avoid prejudging the substantive family violence issues before final hearing?
⚖️ Applicable Law – Legislation, Regulations, Rules
Surveillance Devices Act 2016 (SA)
- s 4(2)(a) — relevant to whether use of a listening device to record a private conversation is prohibited or permitted.
- s 4(2)(a)(i) — permits recording where parties expressly or impliedly consent.
- s 4(2)(a)(ii) — permits recording where use of the listening device is reasonably necessary for the protection of the lawful interests of the person using it.
Evidence Act 1995 (Cth)
- s 138 — discretion to admit improperly or illegally obtained evidence, depending on whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
- Part 10.2 — relied upon in making interim orders.
- r 8.15(3)(e) — relevant to admission/exhibiting of annexures to affidavit material.
Family Law Act 1975 (Cth)
- ss 65DA(2) and 62B — particulars of obligations and consequences of parenting orders.
- s 114Q — publication restriction; the judgment notes the criminal offence for communicating to the public identifying accounts of family law proceedings unless authorised.
📌 Precedents Relied On
This short ex tempore ruling did not turn on detailed case authority. The judgment focused on the statutory framework under the Surveillance Devices Act 2016 (SA) and s 138 of the Evidence Act 1995 (Cth).
The practical legal principle is that covert recordings are not automatically excluded in family law proceedings. The Court must examine why the recording was made, whether any statutory exception applies, and whether the evidence should be admitted despite the manner in which it was obtained.
🧠 Analysis
Issue
Should the mother be permitted to rely on covert audio recordings said to support her family violence allegations, where the father did not expressly consent to being recorded and disputed the allegations?
Rule
A private conversation recorded without consent may offend surveillance devices legislation unless an exception applies. One important exception is where the recording is reasonably necessary for the protection of the lawful interests of the person making it.
In a family violence context, protection from violence, coercion, threats or abuse may constitute a lawful interest. Family violence often occurs behind closed doors, and evidence may be difficult to obtain. That does not mean all secret recordings are automatically admissible, but it does mean the Court will carefully examine whether recording was reasonably necessary for protection.
Even if evidence was improperly or illegally obtained, the Court may still admit it under s 138 of the Evidence Act if the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that manner.
Application
1. The Court treated the recordings as covert
Stewart J approached the recordings as covert on a prima facie basis, even though there were suggestions in some recordings that the father may have known he was being recorded.
That distinction mattered. If the recordings had been made with express or implied consent, the statutory problem would have been reduced. But the Court did not accept that the father’s apparent awareness or comments about admissibility amounted to implied consent.
The father saying, in effect, that the recordings were not admissible or that the mother should have obtained legal advice did not mean he was consenting to being recorded. Stewart J left open that other factual scenarios might support implied consent, but this case did not.
2. The decisive exception was protection of the mother
The real issue was whether the recordings were reasonably necessary for the mother’s protection. Stewart J accepted, on a prima facie basis, that they were.
The Court expressly recognised family violence as a serious social problem that often occurs behind closed doors and can be difficult to prove. Stewart J also noted that family violence organisations commonly advise people to keep family violence diaries, sometimes including recordings.
That reasoning was important. The Court did not treat the recordings as merely litigation tactics. It accepted that, if the mother’s allegations were taken at their highest at this stage, making recordings could be connected to her protection.
3. The Court did not make final family violence findings at this stage
Stewart J was careful not to determine the truth of the family violence allegations during the admissibility ruling.
The mother alleged family violence in different forms. The father denied much of it or placed a different context around events. The judge said the first and second recordings were “fairly compelling”, but made clear that the substantive findings remained a matter for trial.
That is a key procedural point. Admitting the recordings did not mean the mother had proved her case. It meant the evidence could be used at trial, where it would be assessed with all other evidence.
4. Family violence was treated as a continuum
Stewart J rejected the idea that the recordings should be assessed as isolated fragments. His Honour observed that family violence does not allegedly occur in discrete silos but on a continuum.
That supported admitting all of the recordings, not just one or two. The Court considered that the recordings could provide context for the alleged pattern or course of conduct.
This matters in family law evidence. A single incident may not reveal the whole dynamic. A series of recordings may assist the Court to understand whether conduct is isolated, contextual, repeated, escalating or part of a broader pattern.
5. Section 138 provided an alternative pathway
Stewart J held that the recordings were admitted primarily under the exception in the Surveillance Devices Act. However, his Honour added that, even if wrong about that, he would have admitted them under s 138 of the Evidence Act.
That alternative finding is significant. It means the Court considered the recordings sufficiently important and probative that, even if obtained unlawfully or improperly, the balance still favoured admission.
The judgment does not set out a detailed s 138 balancing exercise, but the reasoning makes clear the underlying considerations: the recordings were potentially significant evidence of family violence, the mother said she recorded for protection, and the issues were central to the parenting case.
6. The recordings were allowed to inform the family assessment process
The Court did not merely admit the recordings for trial. It also allowed the parties and the ICL to provide the recordings and transcripts to the psychologist who had prepared the family assessment report.
The parties and ICL were permitted to request that the psychologist read some or all of the transcripts and/or listen to discrete parts of the audio recordings. The mother’s solicitor was required to forward the recordings to the psychologist within seven days.
That shows how evidentiary rulings can affect the expert process. Once admitted, the recordings could potentially influence the expert’s understanding of family violence allegations, parenting dynamics and risk.
7. The Court preserved the final hearing process
The Court re-listed the matter for final hearing on 13 August 2025, with eight days allocated, and made directions for amended applications, affidavits, reply material, ICL material, case outlines and a paginated searchable court book.
The Court also noted that the matter was not regarded as part-heard in the substantive proceedings. That was important because the admissibility hearing did not finally determine the parenting dispute.
The ruling put the evidence in, but left the weight and final findings for trial.
Conclusion
The recordings were admitted.
The Court found, on a prima facie basis, that although the father did not expressly or impliedly consent to the recordings, they were reasonably necessary for the protection of the mother and therefore fell within the relevant exception in the Surveillance Devices Act 2016 (SA).
In the alternative, Stewart J would have admitted the recordings under s 138 of the Evidence Act 1995 (Cth). The recordings and transcripts could be provided to the family report psychologist, the final hearing was re-listed, and interim parenting orders were made.
🧠 Take-Home Lesson
This case is a useful authority for the practical admissibility of covert recordings in family law proceedings involving family violence allegations.
The key point is not that covert recordings are always allowed. They are not. The key point is that where a party can show the recordings were reasonably necessary for their protection, particularly in a family violence context, the Court may admit them despite the absence of consent.
The case also shows why covert recordings can be powerful but risky. The Court may admit them where they are probative and protective, but the party still has to prove the underlying allegations at trial. Admission is not the same as acceptance.
For litigants, the strategic lesson is this: if relying on covert recordings, be ready to explain why they were made, why they were necessary, how they relate to safety, and why the Court should receive them despite privacy and surveillance concerns.
