By Amy Little
When you’re in the midst of a parenting dispute and your ex is acting inappropriately at changeovers, you wouldn’t be the first person to be tempted to record this behaviour (either by video, audio or both). Likewise, when you know they are being inappropriate during telephone calls with the children, it may cross your mind to record these conversations. Then you’ll have proof to support what you have been saying all along and you will be able to show the court just how bad their behaviour is, right?
So what does the law say about recording others and bringing that evidence to court, and how do the family courts look upon parents who do this?
A recent case in the Federal Circuit Court of Australia dealt with this exact issue. In the matter of Coulter & Coulter (No. 2)  FCCA 1290 (“Coulter”) Mr and Ms Coulter were engaged in parenting proceedings before the court concerning arrangements for their four children. The matter was heading towards a final hearing and Mr Coulter brought an application to exclude particular evidence sought to be presented by Ms Coulter. The evidence Ms Coulter wanted to present was two video recordings of changeovers and two audio recordings of telephone conversations between Mr Coulter and some of the children. All of these recordings were taken by Ms Coulter without the knowledge or consent of Mr Coulter.
The two video recordings (of changeovers) took place at Ms Coulter’s home where she set the camera up in the hallway facing the front door and hit ‘record’ before she went and opened the door to Mr Coulter. No explanation was provided by Ms Coulter as to how she recorded the two audio telephone conversations between Mr Coulter and some of the children.
In determining an application to exclude evidence such as this, the court relies upon sections 135 and 138 of the Evidence Act 1995 (Cth) in reaching their decision. Those sections say, in a nutshell:
- S135: The court can refuse to admit evidence if its value is outweighed by the risk that it might be prejudicial to a party, misleading or confusing or create a waste of time.
- S138: Evidence that has been obtained illegally or as a result of impropriety shall not be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in such a manner. Subsection 138(3) goes on to provide a list of matters the court must take into account in determining whether to admit such evidence.
Coulter was a matter that took place in South Australia, so in addition to the Evidence Act, the court had to consider the relevant state legislation.
In Queensland, the relevant legislation (as it pertains to audio recordings only) is the Invasion of Privacy Act 1971 (Qld). That legislation says it is ok to use a listening device to record, monitor or listen to a conversation provided however, that the person recording is an actual party to that conversation. In relation to visual recordings, section 227A of the Criminal Code 1899 (Qld) provides that it is an offence punishable by up to 3 years imprisonment to record another person without that person’s consent, in circumstances where a reasonable adult would expect to be afforded privacy (such as when that person is in a private place or is engaging in a private act).
In Coulter, the court found that the mother was acting in protection of her lawful interests by recording the two videos at changeovers due to her concern that the father would commit family violence and her need to record that conduct for the purpose of obtaining an intervention order. On the other hand, the court did not allow the audio recordings to be admitted into evidence and the presiding judge stated that the mother’s conduct in recording the conversations between the children and their father amounted to “a serious invasion of the father’s privacy and the rights of the children”. Even though some of the recordings captured the father engaging in improper discussions with the child, the court criticised the mother for covertly recording conversations between the children and their father and noted that such behaviour could significantly compromise the relationship between a parent and a child.
In our experience, it is not common for recordings to be useful and in fact, a lot of the time parents who think they have a great recording do not realise that their conduct as evidenced in the recording is actually detrimental to their position. For example, recordings of changeovers where one parent is being argumentative in front of the children, but the parent who is recording takes no steps to remove the children from the situation or de-escalate the conflict in the pursuit of capturing it in a recording.
If you or your children are fearful of or experiencing domestic violence, you should have changeovers facilitated by a third party, such as a supervised children’s contact centre. Alternatively, if the risk factor is not unacceptable, you could have changeovers in public, populated places with CCTV cameras in use, such as fast food restaurants or shopping centres. Such places record interactions that may be admitted as evidence in court proceedings. It can also sometimes be helpful to have a support person attend changeovers with you on the condition that person is known to the children and will not in any way incite conflict between the parents.
If you are uncertain of how to handle your particular situation, obtain legal advice from a family lawyer.
Reading the full judgment of Coulter is helpful to understanding the court’s interpretation of the relevant legislation and how it applies to parenting matters http://classic.austlii.edu.au/au/cases/cth/FCCA/2019/1290.html