Secret audio recordings made by a mother of the father interacting with his children and video footage of him speaking with her during handover have come under consideration in recent Family Law proceedings.  The behaviour of the father during the video recordings was consistent with ‘family violence’, and his conversations with the children were relevant to the mother’s claim that he was trying to alienate the children and engage them in adult disputes.  But could the recordings be used?  Can you record another person without their knowledge to get evidence about their behaviour for use in later Court proceedings?

On two occasions when the children were to be handed over at the mother’s house, before opening the door she placed a video recorder in the hallway to record what went on between her and the father.  On a later occasion the mother made audio recordings of private conversations between the father and children.  No explanation was given as to how she managed to make the recordings or why she did so.  According to the Court, these were undoubtedly private conversations.

The Commonwealth Evidence Act which applies to these kinds of cases doesn’t restrict just the use of evidence that has been unlawfully obtained, but also evidence that has been obtained improperly.  In either case, that evidence can’t be used unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the manner in which it was obtained.  Just what is meant by ‘improperly’ is not defined however the Court was of the view that it will take it’s meaning from the context.  For example, the standards expected of police who are obtaining evidence of a crime are different from those of a member of the public.

The factors that were relevant to assessing the conduct of the mother included the fact that she had made allegations of physical violence and coercive and controlling behaving by the father, that one of the children left her care to live with the father and had no contact with her for some time, that the father was unaware of the recordings, and that she was not a party to the conversations recorded with the children which were clearly intended to be private.

What is the Law about recording a conversation?

The recordings were made in 2015 and the law that applied at the time has now changed although the principles remain much the same.

Briefly in summary, the Surveillance Devices Act now states that a person must not knowingly install or use a listening device to record a private conversation.  “Private conversation” means one that is carried on in circumstances in which at least one party to the conversation desires it to be heard only by the other parties to the conversation.  According to the Courts, this doesn’t mean that it is a ‘secret’ conversation in the sense that the participants can’t tell anyone what was discussed, but simply that the conversation wasn’t ‘public’.

An exception to this is that if a person is a party to the conversation, then they can record it if they do so, ‘for the protection of their lawful interests.’  (There are now a number of exceptions which include installation and use of a listening device on premises where the owner or occupier agrees and it is reasonably necessary to do so for the protection of the lawful interests of the owner or occupier.)

The same exception applied at the time that these recordings were made and so the Court had to determine whether the recordings were made in breach of the relevant law regarding listening devices, and in any event whether it was ‘improper’ for the mother to make the recordings.

The current penalty for using a listening device unlawfully is $15,000 or imprisonment for three years.

The biggest distinction between the audio recordings of the father with his children and the videotape of him speaking with the mother was of course that she wasn’t a party to the conversations with the children.

The Video Recordings – Safety was the Key

The video recordings captured private conversations between the mother and father and were made without his consent.  So the Court had to decide whether the mother made the recordings in order to ‘protect her lawful interests’.  Whether this exception applies will depend on each case but it isn’t enough simply to want to have a reliable record of a conversation.  A key consideration was that a Court should more readily accept that recording a ‘private conversation’ was done in a person’s lawful interests where that person has a genuine concern for their own safety.

In this case, the mother genuinely believed she was the victim of family violence and was looking for a way to demonstrate that so that she could obtain an intervention order.  In fact, the father’s behaviour during the video recordings was consistent with family violence.  For this reason the Court was satisfied that the two video recordings were made to protect the mother’s lawful interests, however it was stressed that this was not a licence to record any or all private conversations she had with the father.

On this basis, it was found that the video recordings did not breach the law relating to recording private conversations.

There was still the question of whether it was ‘improper’ to make the recordings.  On that issue the Court said, “Handovers occur in circumstances where the mother has a legitimate interest in her personal safety, welfare and in preventing the children from being exposed to conflict and unpleasantness between the parties.”  The mother was concerned about the father’s apparent obsessiveness with matters involving her and his abusive, coercive and controlling behaviours and past episodes of violence.  For these reasons it was not improper for her to make the recordings in secret.

The Audio Recordings with the Children

The Court was of the view that there was justification for the mother’s belief that the father was attempting to alienate at least one of the children from her and ‘recruit him for his own tactical purposes.’  However that wasn’t enough to justify the recordings which were in breach of the law.  The mother wasn’t acting to protect herself but was simply trying to get material that might be of use to her at a future time such as these very proceedings.  Therefore these recordings were in breach of the law.

As stated earlier, it is still possible for the evidence to be allowed if the desirability of doing so outweighs the undesirability of admitting evidence obtained in breach of the law.  The recordings of the father with the children were said to have clear value to the mother’s allegation that the father was trying to alienate the children and engage them in adult disputes.  This sort of evidence was important because ‘alienation and tactical recruitment of children as allies in a parental dispute are difficult matters to prove.’

Nevertheless, the Court said that the mother could not have known in advance what the father would discuss with the children and there was no evidence that she had any particular reason to believe that he would attempt to alienate them from her in these particular conversations.  There was also no evidence as to how many other conversations she recorded.  Her conduct was found to be a serious invasion of the father’s privacy and the rights of the children and the covert recording of the private conversations between the father and the children was most improper.  This was irrespective of any motive that the father might have had to enlist them in his dispute with the mother. It was said that the children have a right to a meaningful relationship with the father which included a right to communicate with him privately without fear of being covertly recorded.  The point was made that this is particularly so when the parent is not the primary carer and relies on telephone communication with the child in order to maintain a meaningful relationship.

As the Court in this case noted, “We live in an age where our electronic devices present a myriad of opportunities to covertly make audio and video recordings.”  The changes to the laws relating to listening devices mentioned above have also introduced new provisions relating to the use of ‘optical surveillance devices’ making it illegal to use a device capable of being used to record someone visually with certain exceptions.  We have previously written about the use of secret recordings in a family law case and the Courts are being presented with the need to decide on this sort of evidence more and more.  No decision should be made about whether you can record or videotape another person or use that recording in Court based simply on what is reported above.  If you are involved in a family law dispute it is important to obtain legal advice regarding these issues.

Websters Lawyers have experienced family lawyers who can provide you with the right advice.  For a free initial consultation call our office on 8231 1363 or send through a contact form and we can call you.

Coulter & Coulter (No.2) [2019] FCCA 1290