1. As a starting point it has been debated that parents should and ought never to use their children as pawns in their spousal issues. “Care” of children means not only providing for the child’s daily needs such as a safe home, food, education and love but also includes promoting the well-being of the child, maintaining a sound relationship with the child and, of paramount importance, attending to the best interests of the child. Both parents have these responsibilities and rights
2. The current paradigm favours the practical and theoretical thrust in the direction of ensuring that parents have shared parental responsibility and rights and as such the implications are that children may have two primary attachments. This thus enhances the fact that men are changing their role to become prima facie nurturers and caretakers of their children.
3. There is a lengthy list of factors which courts need to take into account when determining the best interests of a child and this includes taking into account primary considerations in terms of Section 60CC(2) of the Family Law Act 1975 and additional considerations in terms of Section 60CC(3) of the Family Law Act 1975.
4. A parent may have concerns as regards the treatment of their child/children when the other parent exercises contact or in fact has primary residence of the child/children.
5. The Family Courts in Australia are on a regular basis, coming face to face with evidence being presented which involves audio and video recordings taken by one parent at handovers. Family Law does not immediately refuse the audio and video recordings such as with Criminal Law where recording private conversations are in contravention to the Surveillance Devices Act 2007 (NSW) and the Evidence Act 1995 (Cth). It also states that if a person obtains the evidence by illegal means and/or in an improper manner, such recordings would be inadmissible in a court of law.
6. There is a general prohibition on a Commonwealth level that it is unlawful to listen to or record conversations without the knowledge of the person making such recording obviously with exceptions that are authorised by Legislation or a warrant has been issued for government organisations. In all States and Territories there is a general prohibition that it is unlawful to record a private conversation if the person recording is not a participant. In New South Wales it is legal to record to a private conversation if you are one of the parties in the conversation and that participant obtains the consent of all the main parties or obtains the consent of the principal party.
7. It is important that prior to requesting that a recording be presented as evidence that one considers certain facts such as inter alia:
7.1 In which State the recording was made;
7.2 How the recording come about;
7.3 What the circumstances were which surrounded the conversation recorded;
7.4 Who the parties were in the conversation.
8. In the matter of Coulter & Coulter (No 2)(2019) FCCA 1290 the court needed to decide whether the video recordings of the interactions between mother and father during hand overs were admissible or not. The court ultimately found that the private recordings between the children and the father were inadmissible but that the recordings between mother and father were admissible as the mother had a lawful interest in the safety of the children.
9. A court has the discretion in terms of Section 138 of the Evidence Act to refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
9.1 be unfairly prejudicial to a party; or
9.2 misleading or confusing; or
9.3 cause or result in undue waste of time.
10. The Family Court has discretion to admit such recordings if:
10.1 the evidence is probative and relevant; and
10.2 the desirability of admitting the evidence outweighs the undesirability doing so.
11. A court considers balancing the two considerations and will consider:
11.1 the nature and subject-matter of the case;
11.2 the impropriety or contravention involved as regards how the recording was obtained; and
11.3 the best interests of the children.
12. Recordings do tend to feature in matters which involve:
12.1 Family violence allegations;
12.2 Allegations of child abuse;
12.3 Conflict at change overs;
12.4 Allegations pertaining to the conduct of one parent.
13. Parties have sought to make recordings more so on the basis that such recordings may be a means to support their arguments and written Affidavit evidence. It furthermore assists when putting forward evidence of domestic violence or defending allegations of Family Violence.
14. There are often matters which involve a party appearing in court as being charismatic and charming in the public domain however what transpires later is that such person has committed a serious family violence.
15. It is noteworthy that the person making the recording will usually be on their best behaviour while the recorded party, who is often not aware of the recording will not be on his best behaviour. Courts are cautioned in relation thereto as to the value of the evidence recorded however the recorded evidence may expose the recorded party making a false statement and therefore this would be a valuable piece of evidence. The evidence may also demonstrate the recorded party becoming engaged in conflict and/or dishonest behaviour. This type of behaviour therefore may show the court that that person lacks insight and has no regard for the best interests of the children.
16. Therefore, a court of law will often give the evidence serious consideration in admitting the evidence if the safety of children is at risk and there is sufficient probative value.
17. The use of video and/or audio recordings should be cautioned against or at the very least a party seeking to make such recordings must be aware of the risks involved and the shortcomings in making such recordings.
Our Family Law team here at O’Brien Connors & Kennett is available to you if you have any further questions or require relevant legal services, feel free to contact us or visit our Northern Beaches office.
