Family law insights: Who is watching you?

07 November 2016 Topics: Family law

I recently attended a presentation by Inspector Andrew Atkinson of the Victoria Police Technical Surveillance Unit in respect of listening and tracking devices.

The presentation was eye opening in terms of the types of tracking and listening devices now available for purchase to people outside of law enforcement agencies.

Inspector Atkinson advised that there is an extensive array of ‘off the shelf’ surveillance technology available in Australia including:

  1.  audio devices;
  2. optical devices;
  3. GPS based tracking devices; and
  4. software monitoring.

Frighteningly, these devices can be purchased easily online and many in any number of electronics stores.

Aside from the fact tracking equipment is now readily available, a number of things Inspector Atkinson spoke about have application in our day to day practice as family lawyers.

The themes from Inspector Atkinson’s presentation that struck me as relevant to our practice included:

  1. Do not ignore a client’s concern that they or their children are being monitored by a former spouse. Tracking and monitoring devices are now easy to obtain and some are relatively inexpensive. It was confronting to know that some of the apps that can be used to monitor communication or travel can in fact be downloaded to mobile phones without the consent or knowledge of the phone’s owner.
  2. If you or your client locates a tracking or surveillance device, do not touch the device and immediately alert the police.
  3. Sometimes simply turning your mobile phone off and restarting it can be enough to make any hidden apps that may be monitoring your phone’s activity appear on the home screen. These apps can then be detected and may provide evidence of illegal or improper tracking and monitoring activity.
  4. Some of the activity-tracking software can be downloaded by clicking a link in an email; clients with concerns about being monitored should be told to be cautious about clicking links in emails where they are uncertain about where the email originated.
  5. Almost anything can be converted to a listening device, often with the benefit of very simple software; for example, a computer mouse sitting on your desk, or the existing microphones and cameras on laptops, computers and mobile phones.
  6. Unless you change your password on your Wi-Fi router regularly, CCTV footage from in or around the house can in fact be vulnerable to hacking and the visual images or streaming from the CCTV may be viewed by people outside of your home.

In addition to the information Inspector Andrew Atkinson provided regarding the increasing prevalence of surveillance equipment, it was clear the law in this regard is not necessarily able to keep up with technology.

The fact that evidence is obtained illegally, for example, by way of a tracking or monitoring device, does not of itself mean that the court will not consider the evidence that has been obtained in a family law matter. The court will retain a discretion as to whether to admit the evidence under section 138 of the Evidence Act 1995 (Cth).

Certainly, where the evidence is of behaviour or conduct that would be relevant to determining what is in a child’s best interests, the court is likely to allow the evidence to be admitted to ensure the court is fully informed of any and all risks that may impact a child.

Any concerns in relation to tracking or monitoring of parties should be taken seriously and there are experts who can be engaged to provide assistance to determine whether any spyware or monitoring devices have been activated or downloaded to a party’s mobile phone, laptop and computer or whether surveillance devices exist in the home.

To speak with one of our team about any family law issue, please call 07 3231 2444 or email lawyers@cgw.com.au

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.