In a recent South Australian case of Coulter & Coulter (No.2) [2019] FCCA 1290, the mother sought to introduce evidence of two video recordings she secretly made when the father attended changeover at her home, and two audio recordings that she made of private conversations between the children and the father.
The recordings were made without the father’s knowledge. He sought to exclude the evidence of the video and audio recordings.
Parenting issues were in dispute and the mother alleged that the father subjected her to family violence.
In deciding whether to exclude the recordings, the Federal Circuit Court considered firstly whether either of the recordings were "made improperly" and secondly whether they were made contrary to Australian law. In doing so, the court considered the provisions of the Evidence Act 1995 (which is federal legislation) as well as the applicable state laws in South Australia that deal with the use of listening and surveillance devices within that state.
The court decided that the video recordings were not made improperly and were not made in contravention of Australian law. They were allowed into evidence. This was due to an exception provided in the relevant State legislation to illegally making recordings; the video recordings were for the protection of the lawful interest of the mother. The court was satisfied that the mother was acting in protection of her lawful interests. At the time that the videos were made, the mother genuinely believed herself to be a victim of family violence and was trying to find a way to prove this so she could obtain an intervention order. Furthermore, the father’s conduct in video recordings was consistent with the mother’s concerns.
However the court did not allow the audio recordings into evidence. The court found that in making the audio recordings the mother was not acting to protect herself. Her actions in making the audio recordings were described by the court as a serious invasion of the rights of the children and the father’s privacy.
Judge Heffernan highlighted the need to protect privacy, remarking at [27]:
We live in an age where our electronic devices present a myriad of opportunities to covertly make audio and video recordings and monitor electronically stored information. Electronically stored information can be covertly and illegally used by third parties. The ubiquity of smart phones means that every person potentially has a tracking device in their pocket. If in proceedings under the Family Law Act, the Court were to readily admit evidence otherwise improperly or illegally obtained, the temptation, and for many parties the tendency, would be to engage in widespread covert recording of private conversations which would contribute to a lack of trust between the parties, the unnecessary prolongation of disputes, and potentially erode the element of privacy necessary in any meaningful relationship between a parent and a child. Further, it is necessary that this Court recognise the operation of and public policy behind State law making it prima facie illegal to covertly record a private conversation.
How can I learn more?
Adele is an accredited specialist in Family Law. She holds a Bachelor of Laws with Honours and a Bachelor of Arts (Psychology major) from the University of Melbourne.
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