The recent case of Coulter & Coulter No.2 (2019) FCCA 1290 determined that it is in fact a possibility, dependent on the circumstances of the particular case.
THE CASE
A mother who was experiencing domestic violence set up hidden video and audio recording devices to record the father of her children during changeovers at her home. These recordings were made without the knowledge of the father and was introduced into evidence during family law proceedings.
THE LAW
In this case, the court considered admissibility requirements of the probative value of needing to outweigh the prejudicial effects it could have against the other party. In addition, the evidence also had to be obtained in accordance with the Evidence Act.
Listening and Surveillance Devices Act 1972(SA) now repealed but operative during the time the recordings were obtained states that it is illegal to record private conversations unless the listening device is used in the course of the public interest of protecting the lawful interests of the person.
THE DECISION
Video recordings
Video recordings were held not to contravene Australian law because it was found to be recorded in the protection of the mother’s lawful interests. The court took into consideration that mother genuinely believed that she was experiencing family violence and was making recordings for the purpose of obtaining an intervention order. The father’s application to have this removed was subsequently dismissed.
Audio recordings
The court held that the audio recordings did contravene Australian law and was not admissible because it was not obtained for the purpose of protecting the mother’s interests. The mother had recorded the private conversations between her children and the father which conversations can reasonably have been expected to stay within the confines of the people involved. The listening device was thought to be implemented by the mother as proof that the father was involving the children in their parenting disagreements and thus not in the protection of her lawful interests.
WHAT DOES THIS MEAN?
In the midst of family court proceedings which can often be emotional and filled with high tension, it is important to know the boundaries of what can and cannot be used to further your case. Significantly, Justice Heffernan highlighted that recording private conversations between children and their father were improper because this impeded on the ability for the children to speak freely and trust their parents. This is especially in cases where there is one primary carer and the other parent must rely on communications by mobile devices during the time, they are apart. Whether or not video or audio recordings will be admissible as evidence will depend on the circumstances of the particular case and whether they comply with the relevant law.
If you need expert legal representation in Family Law matter, please contact Pannu Lawyers on 02 9920 1787. Our principal is named as leading Family and Matrimonial Lawyer of the Year by Acquisition International in their 2019 leading Adviser Awards. Pannu Lawyers are conveniently located in Blacktown and extensively practice Family Law, Criminal Law, Commercial Law and Conveyancing.
